I 


e ,  z 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


PRINCIPLES 


COMMON-LAW  PLEADING 


A    BRIEF    EXPLANATION    OF    THE    DIFFERENT   FORMS    OF    COMMON-LAW 
ACTIONS,    AND   A    SUMMARY   OF    THE    MOST    IMPORTANT 
PRINCIPLES  OF  PLEADING  THEREIN,  WITH  ILLUS- 
TRATIONS  TAKEN   FROM    THE    CASES 


BY 

JOHN  JAY  McKELVEY,  LL.B.,  A.M. 

OF    THE    NEW    YORK    BAH 


SECOND  EDITION,  REVISED 


NEW  YORK 

BAKER,  VOORHIS  &  COMPANY 
1917 


COPYRIGHT,  1894, 
BY  JOHN  JAY  McKELVEY 

COPYRIGHT,  1917, 
BAKER,  VOORHIS  &  COMPANY 


PREFACE. 


THE  principles  of  common-law  pleading  as  they  came 
into  our  law  are  worthy  of  special  study.  They  con- 
stitute a  subject  of  interest  and  importance  alike  to  the 
lawyer  who  practices  under  a  modern  code  system,  and 
to  him  whose  professional  activity  lies  in  some  State 
where  the  old  forms,  though  modified  somewhat  it  may 
be  by  occasional  statutory  enactment  or  progressive 
court  decision,  still  prevail. 

No  code  has  been  able  to  abolish  the  principles  of 
common-law  pleading  because  they  form  the  foundation 
upon  which  every  code  must  build  its  own  system.  A 
code  may  call  things  by  different  names  —  as  complaint 
for  declaration,  answer  for  plea  —  but  the  things  re- 
main the  same,  and,  what  is  more  to  the  point,  the  pur- 
pose for  which  the  thing  is  used  remains  the  same. 
Hence  to  know  how  to  best  make  the  thing  serve  its 
purpose  one  may  still  study  with  profit  its  origin  and 
its  use  in  the  cases  recorded  in  the  home  of  its  origin. 

It  is-  in  fact  the  same  with  Pleading  as  with  other 
subjects.  Our  whole  system  of  law  is  the  embodiment 
of  the  principles  of  the  common  law  as  found  in  the 
cases,  and  to  the  cases  we  must  ever  turn  for  light 
either  as  a  direct  aid  to  the  administration  of  justice 
or  as  a  means  of  understanding  and  applying  some 
statutory  restatement  of  principles  first  established  by 
the  courts. 

iii 


670424 


IV  PREFACE. 

Such  enactment  has  perhaps  ambitiously  sought  to 
simplify  a  principle  of  law  by  encasing  it  in  exact  lan- 
guage, but  alas,  has  only  succeeded  in  adding  to  the 
labor  of  application  the  task  of  interpretation,  thus 
increasing  the  chance  of  error. 

In  a  democracy  such  as  ours  the  people  are  the  source 
of  the  law,  which  evolves  through  the  slow  process  of 
the  decisions  of  courts  and  the  more  rapid  process  of 
the  enactments  of  legislatures.  When  such  enactments 
are  confined  to  the  prescribing  of  new,  or  the  modify- 
ing of  old  rules  relating  to  property  or  persons,  they 
record  and  reflect  the  current  state  of  society  and  thus 
serve  a  very  useful  purpose;  but  when  they  attempt  to 
crystallize  into  a  set  form  all  existing  rules  governing 
property  and  person  they  merely  complicate  the  situa- 
tion, to  the  consternation  of  the  lawyer  who  now  finds 
himself  removed  one  step  further  from  the  enlightening 
sources  of  the  law  and  is  compelled  to  take  his  light, 
as  it  were,  from  the  original  sources  through  a  statutory 
screen,  not  always,  be  it  said,  of  the  clearest  trans- 
mitting material. 

From  the  earliest  beginnings  down  to  the  time  when 
our  several  States,  with  their  separate  and  differing 
judicial  systems,  began  to  adapt  and  fit  the  common 
law  to  their  respective  needs  we  may  study  the  system 
of  pleading  in  its  development  through  the  cases  and 
the  English  statutes,  with  the  feeling  that  our  knowl- 
edge thus  acquired  will  be  an  asset  of  value  in  any 
jurisdiction. 

To  such  study  the  student  must  add,  in  order 
to  complete  his  equipment,  a  further  study  of  cases  and 


PREFACE.  V 

statutes  in  the  particular  jurisdiction  where  he  intends 
to  practice. 

It  is  not  the  aim  of  this  treatise  to  carry  the  student 
beyond  an  understanding  of  the  main  principles  of  com- 
mon-law pleading  as  they  came  to  us  in  the  beginning, 
and,  except  by  way  of  illustration  where  original  prin- 
ciples have  been  reasserted  by  modern  decisions,  little 
reference  is  made  to  modern  cases. 

The  subject  of  common-law  pleading  has  been 
treated  fully,  and  in  great  detail,  by  Chitty.  Other 
text  writers,  chief  among  them  Stephen,  have 
treated  it  less  in  detail,  but  more  clearly.  The  works 
of  all  of  these  writers,  however,  are  characterized 
by  a  greater  fulness  than  is  necessary,  or  even  con- 
venient, for  the  purposes  of  the  student  who  expects 
to  practice  in  this  country.  What  seems  to  be  required 
is  a  summary  of  the  main  principles  of  the  subject  — 
the  principles  whose  influence  is  still  felt  in  the  various 
systems  of  pleading  which  prevail  in  the  different 
States,  without  the  mass  of  technical  and  local  rules 
which  encumbered  the  old  English  system.  It  is  this 
need  which  the  present  work  is  intended,  in  some 
small  measure,  to  meet. 

The  late  Professor  Ames,  of  the  Harvard  Law 
School,  prepared,  some  years  ago,  a  collection  of  cases 
upon  the  subject,  which  has  been  and  is  used  in  many 
Law  Schools  with  satisfactory  results.  The  selection 
and  arrangement  of  the  cases  by  Professor  Ames  has 
been  so  judicious  and  effective,  and  the  use  of  a  book, 
such  as  his  collection  of  cases,  so  desirable  in  connec- 
tion with  a  text-book,  that  I  have,  in  the  order  of  treat- 
ment of  the  principles  covered  by  his  cases,  followed 


VI  PEEFACE. 

in  the  main  his  arrangement  and  adopted  the  cases 
selected  by  him  as  illustrations.  This  matter  is  con- 
tained in  Part  II. 

Part  I.  contains  a  brief  explanation  of  the  different 
forms  of  actions,  to  which  the  principles  set  forth  in 
Part  II.  mainly  relate.  I  know,  in  my  own  case, 
some  explanation  of  this  nature  would  have  been  a 
great  help  to  a  proper  understanding  of  the  cases.  If 
the  explanation  given  shall  prove  of  assistance  to  any 
one  else,  it  will  have  accomplished  its  purpose. 

In  conclusion,  I  wish  to  say  that  the  present  work 
is  put  forth  only  as  a  guide  to  the  main  principles  of 
the  subject  of  civil  pleading  and  a  help  to  the  under- 
standing of  the  cases  which  illustrate  those  principles, 
and  in  no  sense  as  a  complete  treatise  on  the  subject. 
Illustrations  taken  from  the  cases  have  been  used  to 
show  the  application  of  the  principles  set  forth,  and 
have  been  referenced  for  convenience  both  to  Ames' 
Cases,  where  contained  therein,  and  to  the  original 
reports. 

JOHN  JAY  McKELVEY. 
NEW  YOBK,  Aug.  1,  1917. 


CONTENTS. 


PAET  I. 
FORMS  OP  ACTIONS  AND  DECLAEATIONS. 

CHAPTER  I. 

INTBODUCTOBY. 

§§  1-15 Pages  MO 

1.  Meaning  of  word  Pleadings. — 2.  Familiarity  with 
forms  of  action  necessary. — 3.  How  form  of  action 
determined. — 4  Sufficiency  of  declaration. — 5.  Aim 
of  Part  I. — 6.  Study  of  cases  essential. — 7.  Origin 
of  forms  of  action. — 8.  Names  of  different  forms. — 
9.  Principle  upon  which  recovery  based. — 10.  Real, 
personal,  and  mixed  actions. — 11.  Office  of  declara- 
tion.— 12.  Technical  rules. — 13.  Example  of  declara- 
tion.— 14.  Profert  and  oyer. — 15.  Pledges. 

CHAPTER  II. 

ACTIONS  BASED   ON   ACQUIRED   BIGHTS. 

SECTION  I. — IN  GENEBAL. 

§§  16-20 Pages  11-13 

16.  Distinction  between  two  classes  of  actions. — 17. 
Debt. — 18.  Covenant. — 19.  Detinue. — 20.  Assumpsit, 
special  and  general. 

SECTION  II. — DEBT. 

§§  21-28 Pages  13-19 

21.  Theory  of  action  of  Debt. — 22.  Necessary  allega- 
tions in  declaration. — 23.  Debt  a  broad  action. — 
24.  Debt  on  Simple  Contract. — 25.  Debt  on  Special- 

(vii) 


Vlll  CONTENTS. 

ties. — 26.  Debt  on  Records. — 27.  Debt  on  Statutes.— 
28.  Statement  of  breach. 

SECTION  III. — DETINUE. 

§§  29-31 Pages  19-21 

29.  Nature  of  action  of  Detinue. — 30.  What  plaintiff 
recovers. — 31.  Necessary  allegations  in  declaration. 

SECTION  IV. — COVENANT. 

§§  32,  33 Pages  21-23 

32.  Nature  of  action  of  covenant. — 33.  Necessary  alle- 
gations in  declaration. 

SECTION  V. — SPECIAL  ASSUMPSIT. 

§§  34-37 Pages  23-26 

34.  Origin  of  action. — 35.  Basis  of  recovery,  a  con- 
tract.— 36.  Nature  of  contract. — 37.  Necessary  alle- 
gations in  declaration. 

SECTION  VI. — GENERAL  ASSUMPSIT. 

§§  38-42 Pages  27-31 

38.  Theory  of  recovery  in  General  Assumpsit. — 39. 
Different  counts. — 40.  Basis  of  classification. — 41. 
Necessary  allegations  in  declaration. — 42.  Exam- 
ples of  indebitatus  and  other  counts. 

CHAPTER  III. 

ACTIONS   BASED   ON    NATURAL   RIGHTS. 

SECTION  I. — IN  GENERAL. 

§§  43-46 Pages  32-34 

43.  Similarity  of  Trespass,  Trover,  Replevin,  Case, 
and  Ejectment. — 44.  Natural  rights,  what  they  are. 
— 45.  Nature  of  recovery  in  Trespass,  Trover,  and 
Case. — 46.  In  Replevin  and  Ejectment. 


CONTENTS.  IX 

SECTION  II. — TRESPASS. 

§§  47-51 ..Pages  34-38 

47.  Nature  of  action  of  Trespass. — 48.  Division  of  the 
action. — 49.  Trespass  for  injury  to  person;  neces- 
sary allegations  in  declaration. — 50.  Trespass  for  in- 
jury to  property. — 51.  Necessary  allegations  in 
declaration. 

SECTION  III. — TBOVEB. 

§§  52-59 Pages  38-44 

52.  Nature  of  the  action. — 53.  As  originally  used. — 
54  Subsequent  extension  of  the  action. — 55.  Rule 
as  to  demand  and  refusal. — 56.  Action  as  finally 
extended. — 57.  Real  nature  of  wrongful  acts  re- 
dressed by  this  action. — 58.  Necessary  allegations  in 
declaration. — 59.  As  to  allegation  of  demand  and 
refusal. 

SECTION  IV. — REPLEVIN. 

§§  60-79 : Pages  44-59 

60.  Distress  the  successor  of  forfeiture. — 61.  Replevin 
as  a  remedy  for  illegal  distress. — 62.  Real  purpose 
of  the  action. — 63.  Replevin  in  its  early  form. — 64. 
The  proceedings  for  specific  recovery. — 65.  The 
subsequent  action. — 66.  Proceeding  by  writ  aban- 
doned.— 67.  True  distinction  between  Replevin  in 
the  detinuit  and  detinet. — 68.  Disappearance  of  Re- 
plevin in  the  detinet. — 69.  Impression  that  there 
were  two  forms  of  Replevin  wrong. — 70.  No  action 
of  Replevin  for  damages  only. — 71.  Nature  of 
Avowry  and  Cognizance. — 72.  Extension  of  the 
action. — 73.  Advantage  of  Replevin  over  Detinue. — 
74.  Failure  of  attempt  to  make  Replevin  coexten- 
sive with  Trover. — 75.  Form  of  declaration. — 76. 
Necessary  allegations  in  declaration. — 77.  Allega- 
tion of  place  of  seizure. — 78.  Necessary  allegations 
in  Avowry  or  Cognizance. — 79.  Example  of  declara- 
tion. 


X  CONTENTS. 

SECTION  V. — CASE. 

§§  80-85 Pages  59-63 

80.  Origin  of  action  in  Statute. — 81.  Action  before  the 
statute. — 82.  Separation  of  Assumpsit  and  Trover. — 
83.  What  the  action  includes. — 84  Necessary  allega- 
tions in  declaration  where  action  for  injury  to  per- 
son.— 85.  Where  for  injury  to  property. 

SECTION  VI. — EJECTMENT. 

§§  86-91 Pages  64-68 

86.  Origin  of  action. — 87.  How  question  of  title  in- 
volved.— 88.  Early  use  of  action  to  try  title. — 89. 
Development  of  action  for  this  purpose. — 90.  Rule 
invented  by  Rolle. — 91.  Necessary  allegations  in 
declaration. 


PAKT  II. 
PLEADINGS  SUBSEQUENT  TO  THE  DECLARATION. 

CHAPTER  I. 

DEMURRERS. 

i  92-104 Pages  69-75 

92.  Names  of  pleadings   subsequent  to  declaration. — 

93.  Two   methods   of   answering   the   declaration. — 

94.  Nature  of  the  demurrer. — 95.  Effect  of  the  de- 
murrer.— 96.    Nature    and    effect    of    plea. — 97.    De- 
murrer;    when    used;     form. — 98.    Joinder    in    de- 
murrer.— 99.  Only  one  form  of  demurrer  originally. 
— 100.   Origin  of  special  demurrer. — 101.  Demurrer 
to  Evidence. — 102.    Judgment  final   on   demurrer. — 
103.  Exception  to  this  rule. — 104.  A  demurrer  not 
a  plea. 

SECTION  I. — GENERAL  DEMURRERS. 

I  105-115 Pages  76-83 

105.  Early  effect  of  general  demurrer;   illustration. — 
106.  Effect  of  general  demurrer  after  statute,  as  to 


CONTENTS.  XI 

declaration. — 107.  As  to  subsequent  pleadings. — 
108.  Matters  of  form  not  called  in  question. — 100. 
Except  in  pleas  in  abatement;  illustration. — 110.  As 
to  demurrer  as  an  admission;  illustration. — 111. 
Not  an  admission  of  an  impossibility ;  illustration. 
— 112.  Distinction;  illustration. — 113.  Nor  of  a  con- 
clusion of  law;  illustrations. — 114.  Nor  of  imma- 
terial matters;  illustration. — 115.  Not  an  admission 
for  all  purposes;  illustrations. 

SECTION  II. — SPECIAL  DEMURRERS. 

§§  116-119 Pages  83-86 

116.  Special  demurrer  under  statute  and  at  common 
law. — 117.  Only  questions:  matters  of  form  stated 
in  the  demurrer;  illustrations. — 118.  Includes  a 
general  demurrer;  illustrations. — 119.  Special  de- 
murrer at  present  time. 

SECTION  III. — EFFECT  OF  DEMURRER  IN  OPENING  THE  RECORD. 

§§  120-126 Pages  87-93 

120.  Effect  in  opening  record;  illustrations. — 121. 
Pleadings  examined  only  for  defects  in  substance; 
illustration. — 122.  Meaning  of  "  record  "  ;  illustra- 
tion.— 123.  Where  two  separate  records;  illustra- 
tion.— 124.  Exception  to  rule;  illustration. — 125. 
Party  must  get  judgment  on  his  own  pleadings; 
illustration. — 126.  Where  a  discontinuance;  illus- 
tration. 

CHAPTER  II. 

DILATORY   PLEAS. 

§§  127-140 Pages  94-101 

127  Defects  not  appearing  on  face  of  declaration. — 
128.  Dilatory  plea  the  method  of  bringing  them  be- 
fore court. — 129.  Must  be  used  at  once. — 130.  Classi- 
fication of  dilatory  pleas. — 131.  Plea  to  jurisdic- 
tion.— 132.  Plea  in  suspension. — 133.  Plea  in  abate- 
ment— 134.  Affidavit  of  truth. — 135.  How  dilatory 
plea  differed  from  demurrer. — 136.  Dilatory  plea 


Xll  CONTENTS. 

widely  used  at  common  law. — 137.  Further  classi- 
fication.— 138.  Common  pleas  in  abatement. — 139. 
Rule  as  to  pleas  in  abatement. — 140.  Example  of  plea 
in  abatement. 

CHAPTER  III. 

PLEAS    BY    WAY    OF    CONFESSION    AND    AVOIDANCE. 

§§  141-148 Pages  102-105 

141.  Pleas  in  bar. — 142.  Pleas  by  way  of  confession 
and  avoidance. — 143.  Example. — 144.  Verification. 
— 145.  Express  confession  at  first  required;  illus- 
tration.— 146.  Later,  not  required;  illustration. — 
147.  At  present  time. — 148.  Two  classes  of  pleas. 

SECTION  I. — PLEAS  IN  DISCHABGE. 

§§  148-150 Pages  105-106 

149.  Nature  of  plea  in  discharge. — 150.  Common  forms 
of. 

SECTION  II. — PLEAS  IN  EXCUSE. 

§§   151-153 Page  106 

151.  Nature  of  plea  in  excuse. — 152.  Differs  in  dif- 
ferent actions. — 153.  In  general,  admits  substance 
of  declaration. 

(a).  Special  Assumpsit. 

§§  154-158 Pages  106-109 

154.  What  admitted  in  special  assumpsit  by  plea  in 
excuse. — 155.  Collateral  agreement  may  be  set  up 
by  plea  in  excuse;  illustration. — 156.  But  not  a  part 
of  the  agreement  itself;  illustration. — 157.  Nor  a 
condition;  illustration. — 158.  Nor  lack  of  consider- 
ation ;  illustration. 

(6).  General  Assumpsit. 

§§  159-162 Pages  109-111 

159.  What  admitted  in  general  assumpsit  by  plea  in 
excuse. — 160.  Cannot  deny  debt  by  plea  in  excuse; 


CONTENTS.  Xlll 

illustration. — 161.   Nor   set   up   credit   not   expired. 
— 162.  Nor  set  up  a  special  contract. 

(c).  Debt. 

§§  163-165 Pages  111-112 

163.  What  admitted  in  debt  by  plea  in  excuse. — 164. 
What  can  be  set  up. — 165.  Difference  between  debt 
and  general  assumpsit,  as  to  plea  of  credit  not  ex- 
pired. 

( d ) .  Trespass. 

§§  166-173. .  Pages  112-115 

166.  What  admitted  in  trespass  for  injury  to  the  per- 
son by  plea  in  excuse. — 167.  In  trespass  for  injury 
to  property. — 168.  Plea  of  son  assault  demesne;  il- 
lustration.— 169.  Plea  of  ownership. — 170.  Plea  of 
liberum  tenementum. — 171.  Cannot  plead  in  excuse 
that  act  involuntary. — 172.  Nor  that  defendant  had 
no  physical  control  over  act;  illustration. — 173. 
Where  several  acts  of  trespass  are  alleged;  illustra- 
tion. 

(e).   Trover. 

§§  174-176 Pages  116-117 

174.  No  plea  in  excuse  in  trover;  illustration. — 175 
Nature  of  matters  in  defense;  illustration. — 176. 
Plea  in  discharge  in  trover. 

(/) .  Detinue. 

§§  177-179 Pages  117-119 

177.  What  admitted  by  plea  in  excuse  in  detinue. — 
178.  Lien  must  be  pleaded  in  excuse. — 179.  But  not 
an  offer  to  give  the  goods  up. 

(g) .  Replevin. 
§  180.  Plea  in  excuse  in  replevin Page  119 

(/).  Case. 

§§  181-187 Pages  120-124 

181.  Plea  in  excuse  seldom  used  in  case. — 182.  Usual 


XIV  CONTENTS. 

matters  of  defense. — 183.  Truth,  how  pleaded  in 
case  for  libel. — 184.  What  not  good  plea  in  excuse; 
illustration. — 185.  Reasonable  cause,  how  pleaded  in 
case  for  malicious  prosecution;  illustration. — 186. 
Contributory  negligence,  how  pleaded  in  case  for 
negligence;  illustration. — 187.  Other  matters  not 
proper  in  excuse;  illustration. 
\ 

(g).  Ejectment. 

§  188.  No  room  for  plea  in  excuse Page  124 

CHAPTER  IV. 

PLEAS    BY    WAY    OF    TRAVERSE. 

SECTION  I. — GENERAL  REQUISITES. 

§§    189-199 P,ages    125-132 

189.  Nature  of  traverse. — 190.  Usually  negative  in 
form. — 191.  Must  not  be  argumentative. — 192.  Must 
always  tender  issue. — 193.  If  not  demurred  to,  issue 
must  be  joined. — 194.  Conclusion  of  law  cannot  be 
traversed;  illustrations. — 195.  Nor  immaterial 
matter;  illustrations. — 196.  Immaterial  matter  will 
not  turn  good  plea  in  excuse  into  bad  traverse; 
illustrations. — 197.  Where  immaterial  matter 
mingled  with  material,  both  may  be  traversed;  illus- 
tration.— 198.  Traverse  must  not  be  too  broad; 
illustrations. — 199.  Matter  implied  in  a  pleading 
may  be  traversed. 

SECTION  II. — CLASSIFICATION  OF  TRAVERSES. 
§  200.  Different  classes  of  traverses Pages  132-133 

SECTION  III. — GENERAL  ISSUE  AND  SPECIFIC  TRAVERSES. 
§  201.  Nature  of,  and  distinction  between Pages  133-134 

(a).  Special  Assumpsit. 

§§  202-207 Pages  134-137 

202.  General  issue,  non  assumpsit. — 203.  Effect  of  now 


CONTENTS.  XV 

assumpsit. — 204.  Puts  in  issue  material  averments 
only. — 205.  May  show  omission  of  conditions ;  illus- 
trations.— 206.  Does  not  deny  breach;  illustration. 
— 207.  Specific  traverses;  illustration. 

(Z>).  General  Assumpsit. 

§§  208-210 Pages  137-138 

208.  General  issue;  non  assumpsit. — 209.  What  may  be 
shown  under  non  assumpsit;  illustrations. — 210. 
Specific  traverse. 

(c).  Debt. 

§§  211,  212 Page  139 

211.  General  issue;  nil  debet,  nunquam  indebitatus; 
illustration. — 212.  Breach  cannot  be  traversed. 

(d).  Trespass. 

§§  213-218 Pages  140-143 

213.  General  issue,  not  guilty. — 214.  What  may  be 
shown  under  not  guilty;  illustrations. — 215.  What 
cannot  be  shown;  illustration. — 216.  Specific  trav- 
erse in  trespass  for  injury  to  person. — 217.  In  tres- 
pass for  injury  to  property;  illustrations. — 218.  In 
trespass  for  injury  to  servant;  illustration. 

(e).  Trover. 

§§  219-225 Pages  143-146 

219.  General  issue,  not  guilty;  its  effect;  illustrations. 
— 220.  What  not  guilty  does  not  deny;  illustration. 
— 221.  Specific  traverse,  not  possessed. — 222.  Lien 
may  be  shown  under  not  possessed;  illustration. — 
223.  What  not  possessed  does  not  deny;  illustra- 
tion.— 224.  When  both  pleas  necessary;  illustration. 
— 225.  When  not  necessary. 

(/).  Detinue. 

§§  226,  227 Page  146 

226.  General  issue,  non  detinet;  its  effect;  illustration. 
— 227.  Specific  traverse,  not  possessed;  its  effect; 
illustrations. 


XVI  CONTENTS. 

(g).  Replevin. 

§§  228-232 Pages  147-149 

228.  General  issue,  non  cepit;  its  effect;  illustration. 
— 229.  Place  of  taking. — 230.  Plea  of  rien  en  arrere; 
illustration. — 231.  Specific  traverses  to  declaration 
little  used. — 232.  Common  to  avowry. 

(h).  Case. 

§§  233-242 Pages  149-154 

233.  General  issue,  not  guilty;  its  effect;  illustration. 
— 234.  What  may  be  shown  under  not  guilty. — 235. 
Matters  forming  the  inducement  not  put  in  issue; 
illustration. — 236.  Scienter  put  in  issue ;  illustra- 
tion.— 237.  In  case  for  deceit;  illustration. — 238.  In 
case  for  libel;  illustration. — 239.  In  case  for  nui- 
sance; illustration. — 240.  Specific  traverses  in  case; 
illustration. — 241.  Effect  of  immaterial  allegations 
on  not  guilty;  illustration. — 242.  Specific  traverse 
in  case  for  malicious  prosecution. 

SECTION  IV. — SPECIAL  TBAVEBSES. 

§§  243-254 Pages  154-160 

243.  Object  and  parts  of  special  traverse. — 244.  In- 
ducement.— 245.  Absque  hoc  clause;  illustration. — 
246.  Conclusion  of  special  traverse. — 247.  Cannot 
be  pleaded  to  if  good;  illustration. — 248.  When  in- 
ducement may  be  pleaded  to;  illustration. — 249. 
When  bad  in  form;  illustration. — 250.  Ditto. — 251. 
•when  absque  hoc  clause  bad  in  form. — 252.  Rules. 
— 253.  Special  traverse  not  a  substitute  for  general 
issue;  illustration. — 254.  Nor  for  rien  en  arrere. 

SECTION  V. — REPLICATION  DE  INJURIA. 

§§  255-261 Pages  160-164 

255.  Nature  and  origin. — 256.  In  what  forms  of  action 
used ;  illustrations. — 257.  When  cannot  be  used ; 
illustrations. — 258.  Will  not  put  in  issue  immaterial 
matter;  illustrations. — 259.  Not  available  where 


CONTENTS.  XV11 

plea  amounts  to  a  traverse;  illustrations. — 260. 
Nor  where  the  plea  contains  a  set-off;  illustration. 
— 261.  May  be  used  to  a  part  of  plea  where  other  part 
admitted ;  illustration. 

CHAPTER  V. 

DUPLICITY. 

5  262-2&9 Pages  165-171 

262.  Rule  against  duplicity;  illustrations. — 263.  Has 
no  exception;  Dame  Audley's  Case. — 264.  Apparent 
exception;  illustration. — 265.  Duplicity  a  formal  de- 
fect; illustration. — 266.  Surplusage  will  not  make 
pleading  double;  illustrations. — 267.  Pleading  double 
though  matter  ill  pleaded;  illustration. — 268.  When 
replication  double. — 269.  When  replication  de  injuria 
not  double;  illustration. 

CHAPTER  VI. 

DEPARTURE. 

?  270-277 Pages  172-177 

270.  Rule  against  departure;  illustrations. — 271.  Taken 
advantage  of  by  general  demurrer. — 272.  Ditto. — 273. 
When  replication  a  departure ;  illustration. — 274. 
Ditto. — 275.  When  not  a  departure;  illustration. 
— 276.  Ditto. — 277.  Departure  from  immaterial  aver- 
ment. 

CHAPTER  VII. 

NEW   ASSIGNMENT. 

5  278-287 Pages  178-183 

278.  Rule  as  to  new  assignment. — 279.  Only  used  by 
plaintiff. — 280.  Not  an  admission  of  facts  in  plea; 
illustration. — 281.  When  plaintiff  cannot  new  as- 
sign; illustration. — 282.  Ditto. — 283.  When  may  both 
plead  and  new  assign;  illustration. — 284.  Ditto. — 

285.  Effect  of  failure  to  new  assign ;   illustration. — 

286.  Ditto. — 287.  Monkman  v.  Shepherdson. 


XV111  CONTENTS. 

CHAPTER  VIII. 

MOTIONS  BASED  ON   THE  PLEADINGS. 

SECTION  I. — ABREST  OF  JUDGMENT. 

§§  288-293 Pages  184-187 

288.  Motion  in  arrest  of  judgment;  illustration. — 289. 
Defect  cured  by  answering  pleading. — 290.  Motion 
not  granted  for  defect  in  form. — 291.  When  motion 
will  not  be  granted. — 292.  Ditto. — 293.  In  action  of 
debt  on  a  bond. 

SECTION  II. — NON-OBSTANTE  VEBEDICTO. 

§§  294-300 Pages  187-190 

294.  Nature  of  motion  for  judgment  non-obstante 
veredicto. — 295.  Motion  available  to  either  party.— 
296.  Reason  of  motion;  illustration. — 297.  Original 
scope  of  motion;  illustration. — 298.  To  what  cases 
extended;  illustration. — 299.  Ditto. — 300.  Limitation 
of  motion. 

SECTION  III. — REPLEADEB. 

§§  301-304 Pages  190-194 

301.  Motion  for  repleader  when  granted;  illustration. 
— 302.  When  not  granted. — 303.  Ditto.— 304.  No  real 
occasion  for  repleader. 


GASES  CITED. 

[References  are  to  pages.] 


Aldredge  v.  Wood,  93. 
Anonymous,  84. 
Anonymous,  88. 
Anonymous,  157. 
Anonymous,  159. 
Anonymous,  166. 
Anonymous,  172. 
Anonymous,  191. 
Agar  v.  Lisle,  40. 
Auburn  &  Owasco  Co.  v.  Leitcn, 

91. 
Austin  V.  Moore,  182. 

B 

Baldwin  v.  Cole,  43. 
Barber  v.  Vincent,  78. 
Barrett  v.  Barrett,  159. 
Barrett  v.  Fletcher,  187. 
Bartlett  v.  Wells,  175. 
Beckham  v.  Knight,  154. 
Bedingfreed  v.  Onslow,  36. 
Bennett  V.  Filkins,  155. 
Bridgewater  v.  Bythway,  128. 
Bridge  v.  Grand  Junction  Ry. 

Co.,  123. 
Brine    v.    Great    Western    Ry. 

Co.,  176. 

Brikhed  v.  Wilson,  14. 
Brind  v.  Dale,  108,  135. 
Brooke  v.  Brooke,  185. 
Brooks  v.  Stewart,  105. 


Broomfield  v.  Smith,  138. 
Brotherton  v.  Wood,  60. 
Burser  v.  Martin,  35. 
Bussey  v.  Barnett,  138>  139. 


Calverac  v.  Pinkero,  70. 
Chancellor  of  Oxford's  Case,  40 
Chance  v.  Weeden,  161. 
Claflinu.  Baere,  111. 
Clements  v.  Flight,  117,  146. 
Cocker  v.  Compton,  182. 
Cohen  v.  Home  Ins.  Co.,  165. 
Colburne  v.  Stockdale,  131. 
Cole  v.  Hawkins,  177. 
Cole  v.  Maunder,  79. 
Collum  v.  Andrews,  182.  • 
Cooke  v.  Oxley,  184. 
Cope  v.  Lewyn,  10. 
Cotton  v.  Browne,  122. 
Couling  v.  Coxe,  190. 
Crogate's  Case,  162,  164. 
Crouch  v.  London  &  N.  W.  Ry. 
Co.,  124. 

D 

Dale  v.  Vale,  76. 
Dalston  v.  Janson,  20. 
Dame  Audley's  Case,  167. 
Dannet  v.  Collingdell,  35. 
Davies  v.  Penton,  90. 
De  Pinna  v.  Pol-hill,  137. 


(xix) 


XX 


CASES    CITED. 


De  St.  Aubin  v.  Guenther,  129. 
Dover  v.  Rawlings,  147. 
Dorrington  v.  Carter,  117,  144. 
Duke  of  Rutland  v.  Bagshawe, 
190. 

E 

Earl  of  Manchester  v.  Vale,  115. 
Eavestaff  v.  Russell,  106. 
Ellet  v.  Pullen,  182. 
Erskine  v.  Townsend,  10. 
Everard  v.  Hopkins,  26. 

P 

Filliene  v.  Armstrong,  189. 
Fisher  v.  Wood,  164. 
Fletcher  v.  Wilkins,  48,  52. 
Frankum  v.  Earl  of  Falmouth, 

150. 

Freeman  v.  Crafts,  182. 
Fortescue  v.  Holt,  155. 
Foshay  v.  Riche,  127. 
Fursden  v.  Weeks,  162. 

G 

Gaile  v.  Betts,  168. 
Galway  v.  Rose,  166. 
Gardner  v.  Alexander,  138. 
Gibbons  v.  Pepper,  115,  140. 
Gilbert  v.  Parker,  132. 
Goodburne  v.  Bowman,  189. 
Goodchild    v.    Pledge,    19,    103, 

105,  139. 

Goram  v.  Sweeting,  131. 
Gordon  v.  Ellis,  186,  194. 
Gould  v.  Lasbury,  104,  106. 
Grills  v.  Mannell,  127. 

H 

Haiton  v.  Jeffreys,  70,  74,  75. 
Hancocke  v.  Prowd,  10,  15. 
Harrison  v.  Cotgreave,  167. 


Hasselbach  v.  Mt.  Sinai  Hospi- 
tal, 87. 

Hastrop  v.  Hastings,  91. 
Hayselden  v.  Staff,  110,  138. 
Heard  v.  Baskerville,  85. 
Heath  v.  Milward,  141. 
Hill  v.  Wright,  148. 
Hodges  v.  Steward,  80. 
Holcroft  v.  French,  25. 
Holmes  v.  Seely,  37. 
Horn  v.  Lewis,  160. 
Horner  v.  Ashford,  23. 
Huddart  v.  Rigby,  183. 
Huish  v.  Phillips,  157. 
Humphreys  v.  Bethily,  169. 


In  re  Wilsons,  55. 
Isaac  v.  Farrar,  161. 
Isaak  v.  Clark,  40. 
Ivo  de  Stokes  v.  Richard  Trint, 
14. 


Jevens  V.  Harridge,  14. 

Jones  V.  Brown,  38. 

Jones  v.  Chapman,  141. 

J.  S.  of  Dale  v.  J.  S.  of  Vale,  76 

K 

Kempe  c.  Crews,  192. 
Kettle  V.  Bromsall,  12,  20. 
King  V.  Rotham,  84. 
Kinneyside  V.  Thornton,  60. 
Knapp  v.  Salsbury,  140. 


Lacy  v.  Reynolds,  188. 
Lambert  v.  Taylor,  189. 
Lane  r.  Alexander,  128. 
Lane  v.  Tewson,  118,  137. 


CASES    CITED. 


XXI 


Latham  t?.  Rutley,  136. 
Leach  v.  Thomas,  186. 
Legg  v.  Evans,  177. 
Lewis  v.  Alcock,  152. 
Lillie  v.  Price,  151. 
Livingston  v.  Rogers,  184. 
Loweth  v.  Smith,  179,  181. 
Lyall  v.  Higgins,  109,  134. 

Me 
McPherson  f.  Daniels,  121. 

M 

Maltravers  f.  Tuberville,  20. 
Marsh  v.  Bulteel,  92. 
Martin  t.  Kesterton,  178. 
Mason  v.  Farnell,  118. 
Mayor  v.  Richardson,  157. 
Mennie  t'.  Blake,  55. 
Metzner  v.  Bolton,  136. 
Miflard  f.  Baldwin,  81. 
Millard  v.  Caffin,  48. 
Mole  v.  Wallis,  176. 
Monkman  v.  Shepherdson,  183. 
Monprivatt  f.  Smith,  181. 
Moore  f.  Jones,  23. 
Morgan  »•  Pebrer,  111. 

N 

Nash  v.  Breeze,  109. 
Niblet  v.  Smith,  173. 
Nichols  v.  Raynbred,  27. 
Norman  v.  Westcombe,  179. 
Norton  v.  Scholefield,  152. 

O 

O'Brien  v.  Saxon,  163. 
Omalley  v.  111.  Publishing  and 

Printing  Co.,  151. 
Owen  f.  Knight,  144. 
Owen  v.  Reynolds,  177. 


Palmer  v.  Elkins,  158. 

Palmer  v.  Tuttle,  182. 

Patterson  f .  Clark,  141. 

Paxton  v.  Male,  61. 

Pearson  v.  Roberts,  47. 

Penn  v.  Ward,  163. 

Penno  v.  Bennett,  164. 

Perring  v.  Harris,  149. 

Petre  v.  Duke,  51. 

Piggot's  Case,  87. 

Pilgrim    v.    Southampton,    etc., 

Ry.,  37. 

Postlethwaite  v.  Parkes,  38. 
Potter  v.  North,  59. 
Prettyman  v.  Lawrence,  180. 
Pullen     v.     Seaboard     Trading 

Co.,  129. 

R 

Rathbone  v.  Rathbone,  170. 
Rex  v.  Knollys,  81. 
Rex  v.  Phillips,  192. 
Reynolds  v.  Blackburn,  171. 
Richards  V.  Frankum,  146. 
Richards  v.  Hodges,  173. 
Robinson  V.  Rayley,  169. 
Rogers  v.  Custance,  181. 
Russell's  Case,  127. 

S 

Salter  f.  Parchell,  164. 
Saunders  v.  Crawley,  166,  168. 
Scheeline  f.  Mosher,  99. 
Scovill  v.  Seeley,  82. 
Selby  v.  Bardons,  161. 
Sergeant  v.  Fairfax,  191. 
Shephard  V.  Shephard,  170. 
Sieveking  v.  Dutton.  109,  134. 
Sir  Francis  Leke's  Case,  130. 
Sir  Ralph  Bovy's  Case,  130. 


xxii 


CASES    CITED. 


Slocombe  v.  Lyall,  141. 
Smart  v.  Hyde,  107,  135. 
Smith  v.  Parsons,  136,  137. 
Spencer  v.  Bemis,  179. 
Spencer  V.  Dawson,  151. 
Squires  v.  Seward,  141. 
Staple  V.  Heydon,  191. 
State  of  Maine  v.  Peck,  74,  85. 
Stephens  v.  Underwood,  170. 
Stinstm  v.  Gardiner,  83. 


Tavernour  v.  Little,  153. 
Taylor  V.  Markham,  163. 
Taylor  V.  Smith,  180. 
Thomas  0.  Morgan,  150. 
Thorn  v.  Shering,  156. 
Tippet  V.  May,  93. 
Tobey  v.  Webster,  37. 
Tompkins  v.  Ashby,  83. 
Torrence  v.  Gibbons,  142. 
Tresham  v.  Ford,  80. 


Trevilian  v.  Pyne,  53. 
Tryon  v.  Carter,  192. 

V 

Vaux  v.  Mainwaring,  16. 
Vere  v.  Smith,  176. 

W 

Walden  v.  Holman,  75,  77. 
Walker  v.  Jones,  128. 
Watkins  v.  Lee,  153. 
Wheedon  v.  Timbrell,  38. 
White  v.  Bodinam,  132. 
White  v.  Teale,  144. 
WTilson  V.  Hobday,  13. 
Wilson  v.  Palmer,  97. 
Winchelsea  v.  Higden,  173. 
Winn  v.  White,  135. 
Wise  v.  Hodsall,  104,  113,  114 
Witts  v.  Polehampton,  191. 

Y 

Young  V.  Cooper,  116,  143. 


PRINCIPLES  OF  COMMON-LAW  PLEADING. 


PART  I. 

FORMS  OF  ACTIONS  AND  DECLARATIONS. 


CHAPTER    I. 

INTRODUCTORY. 

§  !•  The  word  Pleadings  in  a  broad  sense  and  as 
used  at  the  present  time  applies  to  the  statements, 
written  or  oral,  by  which  the  parties  to  an  action  for- 
mally present  the  case  to  the  court  for  trial.1 

§  2.  The  principles  of  pleading  are  the  rules  which, 
in  the  development  of  the  law  of  procedure  in  actions, 
have  become  established  with  reference  to  the  form 
in  which  the  parties  shall  state  their  respective  ver- 
sions of  the  matter  in  dispute  between  them,  and  with 
respect  to  the  manner  in  which,  and  means  by  which, 
either  party  may  take  advantage  of  a  failure  on  the 
part  of  the  other  to  properly  formulate  his  statements. 

One  may  learn  a  rule  of  pleading,  such  as  that  a 
denial  must  not  be  made  of  an  immaterial  allegation, 

1  As  early  as  1677  we  find  "Pleadings"  defined  as  including 
the  "  count "  or  declaration  as  well  as  to  the  subsequent  state- 
ments of  the  parties. —  Euer,  Doctrina  Placitandi,  Preface. 


PRINCIPLES  OF  COMMON-LAW  PLEADING. 

but  to  apply  the  rule  one  must  know  what  is  an  im- 
material allegation.  What  is  an  immaterial  allegation 
in  one  form  of  action  may  be  a  very  material  one  in 
another. 

Again,  one  may  be  told  that  there  is  no  room  for 
a  plea  in  excuse  in  the  action  of  trover,  but  to  under- 
stand this  rule  one  must  know  something  about  the 
form  of  action  known  as  trover,  as  distinguished  from 
trespass,  or  some  other  form  of  action  in  which  he  is 
told  that  a  plea  in  excuse  may  be  used.  A  general 
knowledge  of  the  nature  of  the  different  forms  of 
action  is,  therefore,  essential  to  a  proper  understanding 
of  the  principles  of  pleading. 

§  3.  It  is  the  plaintiff  in  the  action  who  determines 
the  form  which  the  action  shall  take :  he  does  it  by 
the  first  pleading  in  the  action,  known  as  the  decla- 
ration, a  formal  statement  to  the  court  of  the  facts 
upon  which  he  deems  he  has  the  right  to  invoke  the 
aid  of  the  court  against  the  defendant.  He  must  take 
the  responsibility  of  determining  whether  he  has  a 
cause  of  action,  what  relief  he  is  entitled  to,  and  what 
form  of  action  will  fit  the  case. 

The  proper  determination  of  these  questions  is  im- 
portant to  the  plaintiff  in  drawing  his  declaration.  A 
proper  determination  of  the  same  questions  is  im- 
portant to  the  defendant  in  deciding  what  steps  to 
take  in  reference  to  the  declaration.  The  declaration 
will  be  sufficient  if  it  states  a  valid  cause  of  action  in 
the  form  which  will  give  the  plaintiff  the  relief  to 
which  the  facts  entitle  him. 


INTRODUCTORY.  3 

§  4.  To  determine  whether  or  not  the  declaration 
in  any  given  action,  viewed  in  this  light  as  a  statement 
of  the  plaintiff's  case,  is  sufficient,  obviously  requires 
something  besides  a  knowledge  of  the  principles  of 
pleading.  That  something  is  a  general  knowledge  of 
the  rights  and  obligations  of  the  individual  as  a  member 
of  civilized  society  subject  to  the  common  law,  and  of 
the  different  forms  of  action  in  which  such  rights  and 
obligations  are  enforced.  A  study  of  the  principles  of 
pleading  will  not  teach  when  a  declaration  is  insuf- 
ficient as  a  statement  of  the  plaintiff's  case,  but  only 
how  to  bring  the  matter  before  the  court  for  action,  if 
from  his  knowledge  of  substantive  law  the  pleader  has 
determined  that  the  declaration  is  insufficient. 

§  5.  It  often  happens  that  the  student  takes  up 
the  study  of  common-law  pleading  before  he  has  be- 
come familiar  with  the  different  branches  of  substantive 
law  and  the  various  forms  of  action  which  have  arisen 
under  the  common-law  system.  It  is  perhaps  neces- 
sary that  this  should  be  so,  inasmuch  as  some  knowl- 
edge of  the  different  pleadings  and  their  offices  is  es- 
sential to  a  proper  understanding  of  the  cases  which  are 
the  main  sources  of  the  substantive  law.  It  is  there- 
fore with  a  view  to  helping  the  student  to  more  read- 
ily grasp  the  principles  which  govern  the  decisions  of 
the  various  questions  of  pleading  arising  in  the  reported 
cases,  that  an  explanation  of  the  different  forms  of 
action,  and  of  the  necessary  allegations  in  the  declara- 
tions of  each,  is  here  introduced.  The  aim  has  been  to 
present  the  matter  in  the  briefest  form  consistent  with 
clearness.  The  subject  of  the  declaration  in  each  form 


4  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

of  action  has  been  taken  up  in  connection  with  the 
explanation  of  such  action,  in  preference  to  treating 
forms  of  action  separately,  as  is  usually  done. 

§  6.  One  may  justly  inquire  before  entering  upon 
a  study  of  the  several  forms  of  common-law  actions 
referred  to,  wherein  a  knowledge  of  the  distinction 
between  the  several  forms  will  aid  in  modern  practice. 

The  answer  is  that  whatever  form  for  the  statement 
of  his  position  modern  statutory  regulations  may  have 
imposed  upon  the  party  who,  as  plaintiff  or  defendant, 
seeks  the  aid  of  the  Courts,  the  principles  underlying 
the  relief  to  which  he  is  entitled  must  often  be  sought 
directly  in  cases  which  have  "  wended  their  toilsome 
way  through  the  Courts  by  means  of  the  old  common- 
law  forms."  And  even  when  the  principles  involved 
have  been  restated  in  statutory  law  it  is  more  than 
likely  the  old  cases  will  be  resorted  to  for  the  purpose 
determining  the  proper  meaning  or  application  of  the 
statutory  provisions.  Hence  as  there  can  be  no  escape 
from  a  resort  to  the  cases,  it  is  clear  that  they  will  be 
better  understood  and  interpreted  if  there  be  a  famil- 
iarity with  the  different  forms  in  which  they  were  cast. 

§  7.  The  different  forms  of  action  were  the  out- 
growth of  the  many  and  varied  states  of  facts  pre- 
sented to  courts  by  plaintiffs  seeking  redress  against 
defendants.  It  became  a  convenience  to  designate 
similar  causes  of  action  —  i.  e.,  causes  of  action  where 
the  plaintiffs  based  their  rights  to  relief  upon  the  same 
theory  —  by  the  same  name.  The  result  was  a  number 
of  classes  of  actions,  each  with  its  separate  name  and 


INTRODUCTORY.  D 

form  of  statement,  in  which  classes  were  included  all 
of  the  ordinary  cases  arising  between  litigants.  But 
with  the  development  of  the  law  and  the  broadening  of 
the  field  of  actionable  wrongs,  cases  were  frequently 
presented  which  could  not  be  brought  within  any  one 
of  the  established  classes  of  actions  and  yet  the  plain- 
tiffs were  clearly  entitled  to  relief.  The  plaintiffs  were 
therefore  permitted  to  state  the  facts  and  demand  the 
relief  to  which  they  deemed  they  were  entitled,  and 
these  actions  were  termed  "Actions  on  the  Case"  or 
"Actions  of  Trespass  on  the  Case."  Later  they  became 
a  class  by  themselves,  known  as  "  Case"  and  an  action 
was  spoken  of  as  being  brought  in  Case,  just  as  in 
Trespass  or  in  Debt. 

§  8.  The  different  forms  of  common-law  actions 
were: 

I.  DEBT.  VI.  TRESPASS. 

II.  DETINUE.  VII.  TROVER. 

III.  COVENANT.  VIII.  REPLEVIN. 

IV.  SPECIAL  ASSUMPSIT.  IX.  CASE. 

V.  GENERAL  ASSUMPSIT.  X.  EJECTMENT. 

It  is  interesting  to  note  that  there  is  a  great  difference 
in  the  statutory  systems  which  have  in  most  States 
superseded  the  old  common-law  classification  of  ac- 
tions. Where  in  one  an  attempt  will  be  made  to  pre- 
serve the  distinctions,  as  in  Alabama,1  in  another,  as 

i  Alabama  Code,  1907,  §  5382  et  seq.  The  statute  even  pre- 
fecribes  the  forms  for  the  complaint  (same  as  declaration)  in  the 
several  forms  of  action  and  subdivides  both  contract  and  tort 
actions  into  many  different  classes. 


6  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

in  our  latest  and  most  modern  of  state  judicial  systems, 
that  in  Arizona,  we  find  all  distinctions  brushed  aside, 
even  that  between  law  and  equity,1  and  a  complaint 
may  combine  without  separate  statement  several  dif- 
ferent causes  of  action. 

§  9.  Before  noticing  separately  the  different  forms 
of  action  and  the  declaration  in  each,  it  may  be  of 
assistance  to  call  attention  to  an  elementary  principle 
upon  which  is  based  the  theory  of  recovery  in  all  actions 
alike.  It  is  this:  that  to  have  a  cause  of  action  you 
must  have  (1)  a  right,  (2)  a  wrong,  i.  e.,  a  violation 
of  the  right. 

The  most  ancient  and  best  definition  of  an  action 
has  been  said  to  be  that  of  the  Mirror,  "An  action  is 
nothing  else  but  a  lawful  demand  of  right."  2  The 
natural  classification  of  actions  is  accordingly  that 
which  rests  upon  a  distinction  between  the  rights 
sought  to  be  redressed.  It  is  this  principle  of  classifi- 
cation which  the  author  has  adopted,  and  pursuant  to 
it  has  divided  the  ten  forms  of  action  above  given  into 
two  general  divisions:  (1)  those  based  on  acquired 
rights,  treated  of  in  Chapter  II.;  (2)  those  based  on 
natural  rights,  treated  of  in  Chapter  III. 

§  10.  Actions  are  commonly  divided,  with  respect 
to  their  subject-matter,  into  three  classes,  Real,  Per- 

1  Revised   Statutes  of   Arizona,   §   425.     "The   complaint  shall 
set  forth  clearly  the  names  of  the  parties,  a  concise  statement 
of  the  cause  of  action,  without  any  distinction  between  suits  at 
law  and  in  equity  and  shall  also  state  the  nature  of  the  relief 
which  he  demands." 

2  Mirror  of  Justices,  ch.  II,  §  1. 


INTRODUCTORY.  7 

sonal,  and  Mixed.  Real  actions  are  those  in  which,  the 
specific  recovery  of  real  property  in  some  form  is 
sought.  Personal  actions  are  those  in  which  damages 
are  sought  for  injuries  to  the  person,  to  personal  prop- 
erty, or  to  real  property,  or  in  which  the  specific  recov- 
ery of  personal  property  is  sought.  Mixed  actions  are 
those  in  which  the  specific  recovery  of  real  property  is 
sought,  together  with  damages. 

Except  from  an  historical  point  of  view,  a  study  of 
the  old  common-law  real  actions  would  be  of  little  value, 
as  they  have  long  since  ceased  to  be  used,  and  there  are 
no  principles  connected  with  them  which  have  survived 
to  influence  the  modern  forms  of  procedure.  The  old 
writs  of  right,  entry,  formedon,  and  dower  were  the 
most  common  of  these  real  actions. 

The  distinction  between  personal  actions  'and  mixed 
actions  is  of  no  importance ;  at  the  same  time  it  is  well 
to  understand  the  meaning  of  the  terms,  as  they  are 
frequently  met  with.  It  will  be  seen  by  referring  to 
the  explanation  of  the  objects  of  the  various  forms  of 
action  treated  of,  that  all  of  them  except  the  action  of 
ejectment  belong  to  the  class  known  as  personal  actions. 
There  is  no  applicability  in  the  term,  as  they  relate  ex- 
clusively neither  to  personal  property  nor  to  the  person. 

§11.  In  all  forms  of  action  it  is  the  office  of  the 
declaration  to  state  the  cause  of  action.  This  neces- 
sarily involves  a  statement  of  the  right  and  of  the 
wrong.  To  show  that  the  cause  of  action  belongs  to 
the  plaintiff  it  must  appear  that  the  right  is  the  plain- 
tiff's, and  that  the  wrong  by  the  defendant  is  a  violation 
of  that  particular  right.  Examination  of  the  declara- 


8  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

tion  in  the  different  forms  of  action  will  prove  in  every 
instance  that  if  the  allegations  reveal  a  right  in  the 
plaintiff,  and  a  violation  of  that  right  by  the  defendant, 
the  declaration  is  good  in  substance,  and  the  rules  laid 
down  as  to  what  allegations  are  necessary  to  show  a 
good  cause  of  action  will  be  found  to  look  toward  that 
one  end,  namely,  the  statement  of  the  right  and  its  vio- 
lation. Any  other  rules  must  relate  only  to  matter  of 
form.  If  this  simple  principle  —  so  simple  and  ele- 
mentary that  it  seems  to  scarcely  need  stating  • —  be  kept 
in  mind,  it  will  aid  very  materially  to  fix  in  the  mind 
the  rules  relating  to  the  declarations  in  the  different 
forms  of  action,  and  to  make  them  easy  of  application 
in  any  given  case. 

§  12.  There  were  many  technical  rules,  sometimes 
local  to  a  particular  court,  and  many  of  which  are  ob- 
solete, which  relate  to  different  parts  of  the  declara- 
tion, especially  to  the  beginnings  and  endings.  As 
these  rules  have  nothing  to  do  with  the  main  principles 
of  pleading,  a  statement  of  them  could  be  of  no  value 
to  the  student,  and  might  tend  to  confuse  the  subject. 
They  are  therefore  omitted. 

§  13.  While  it  is  not  the  purpose  of  the  author  to 
make  the  present  work  in  any  sense  a  book  of  forms, 
it  may  be  helpful  to  set  forth  in  full  one  example  of 
a  declaration  (as  well  as  of  each  of  the  other  pleadings 
as  they  are  taken  up),  in  order  to  call  attention  to  the 
different  parts,  and  to  distinguish  between  that  which 
is  merely  formal  and  that  which  constitutes  the  sub- 
stance of  the  declaration. 


INTRODUCTORY. 


A  declaration  in  any  form  of  action  began  with  a 
heading  showing  the  court  in  which  the  action  was 
brought  and  the  date  of  the  filing  of  the  declaration,  as : 


IN  THE  KING'S  BENCH  ON 
THE  STH  DAY  OP  JANUABY, 
1840. 

Middlesex,  as.: 


Next  came  the  venue  or  name 
of  the  county  in  which  the  ac- 
tion was  brought,  as: 

Then  came  a  statement  of 
the  names  of  the  parties  and 
attorneys,  and  of  the  form  of 
action  adopted,  as: 


Then  came  a  statement  of 
the  facts  upon  which  the  action 
was  based,  necessarily  varying 
with  the  circumstances  of  each 
case.  This  was  the  substance 
of  the  declaration  —  the  part 
with  which  we  are  concerned 
in  the  different  forms  of  actions : 


Then    came    a    statement    of 
th«  amount  of  damages  claimed : 


JOHN  DOE,  by  A.  B.,  his  at- 
torney, complains  of  RICHABD 
ROE,  who  has  been  summoned 
to  answer  the  said  plaintiff  of  a 
plea  of  trespass. 

For  that  the  said  RICHABD 
ROE  heretofore  to  wit,  on  the 
1st  day  of  December  in  the 
year  of  our  Lord  1839,  with 
force  and  arms,  made  an  assault 
upon  the  said  plaintiff,  and 
beat,  wounded,  and  ill-treated 
him,  so  that  his  life  was  de- 
spaired of;  and  other  wrongs 
to  the  said  plaintiff  did ;  against 
the  peace  of  our  said  lord,  the 
king. 

To  the  damage  of  said  plain- 
tiff of  £100.  And,  therefore, 
he  brings  his  suit,  etc. 


§  14.  In  the  reports  the  word  "  profert  "  frequently 
occurs  in  reference  to  the  declaration  as  well  as  the 
word  "  oyer."  A  plaintiff  is  said  to  "  make  a  profert  " 
in  his  declaration,  or  a  defendant  is  said  to  "  crave 
oyer "  or  "  demand  oyer."  In  certain  actions  where 


10  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

the  plaintiff's  claim  appeared  in  the  statement  of  the 
facts  to  be  by  virtue  of  a  deed,  or  other  writing,  it  was 
necessary  for  him  to  make  an  offer  to  bring  the  deed 
or  other  writing  into  court  to  exhibit  to  the  court  and 
to  the  defendant  ;  or  in  the  technical  words  of  the  time, 
to  "  make  a  profert  "  of  it.  The  best  illustration  of 
this  perhaps  was  in  the  case  of  an  executor  or  adminis- 
trator suing  in  his  representative  capacity.  His  right 
to  maintain  the  action  depending  upon  the  letters  of 
administration  or  letters  testamentary,  as  the  case  might 
be,  he  was  required  to  make  a  profert  of  them.1  Simi- 
larly the  defendant,  if  he  was  entitled  to  see  a  document 
referred  to  in  the  declaration  and  of  which  a  profert 
was  made,  demanded  the  right  to  see  it  and  was  said  to 
"  crave  oyer  "  or  "  demand  oyer  "  of  it.  Oyer  could 
not  properly  be  demanded  unless  a  profert  had  been 
made  by  the  adversary.2  A  profert,  if  inserted  as  a 
part  of  the  declaration,  usually  followed  the  statement 
of  the  amount  of  damages. 

§  15.  In  the  reports  of  the  earlier  cases  the  decla- 
ration will  sometimes  end  with  the  words  "  Pledges, 
etc."  It  was  customary  in  some  of  the  courts  to  require 
the  declaration  to  name  the  "  Pledges  "  —  i.  e.,  the 
persons  who  stood  as  guarantors  to  the  court  that  the 
plaintiff  would  prosecute  his  suit.3  Hence  a  declara- 

,     .  ,    a  -r,,    ,         jJohn  Doe, 
tion  would  end  with      Pledges  jRichard 


1  Cope  v.  Lewyn  Hobart,  38o. 

2  Erskine  v.  Townsend,  2  Mass.  494. 

s  "And  these  are  pledges  of  prosecution,  John  Doe  and  Richard 
Roe,"  Hancocke  v.  Prowd,  1  Saunders,  328. 


ACTIONS    BASED    ON    ACQUIRED    EIGHTS.  11 

CHAPTER  II. 

ACTIONS  BASED  ON  ACQUIRED  EIGHTS. 

SECTION  I. —  IN  GENEEAL. 

§  16.  Of  the  ten  forms  of  common-law  actions  men- 
tioned in  the  preceding  chapter,  the  first  five, —  Debt, 
Detinue,  Covenant,  Special  Assumpsit,  and  General 
Assumpsit, —  in  one  sense  form  a  group  by  themselves 
as  distinguished  from  the  last  five  forms:  Trespass, 
Trover,  Replevin,  Case,  and  Ejectment. 

The  wrongs  which  are  redressed  in  the  former  class 
of  actions  are  those  which  are  violations  of  special 
rights, —  rights  which  exist  because  of  special  relations 
into  which  the  parties  have  entered. 

§  17.  The  basis  of  the  action  of  Debt  is  the  viola- 
tion by  the  defendant  of  a  right  which  exists  because 
the  plaintiff  and  defendant  have  placed  themselves, 
by  their  acts,  in  the  special  relation  of  debtor  and 
creditor.  This  right  may  be  called  an  acquired  right, 
to  distinguish  it  from  the  rights,  which  every  person 
possesses  because  he  is  a  member  of  civilized  society, 
and  which  may  be  called  natural  rights. 

§  18.  In  Covenant  the  action  is  for  violation  of  a 
similar  acquired  right;  a  right  which  has  been  ac- 
quired from  the  making  of  the  covenant  and  which 
implies  a  special  obligation  on  the  part  of  the  cove- 


12  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

nantor,  and  not  a  general  obligation  on  the  part  of  all 
members  of  society. 

§  19.  In  Detinue  this  feature  is  not  quite  so  ap- 
parent; in  fact,  the  tendency  has  been  to  class  the 
action  with  that  of  Trover,  and  to  treat  the  detaining 
in  the  former  action  as  a  tortious  act  similar  to  the 
converting  in  the  latter. 

It  is  conceived  that  the  true  theory  of  the  action  of 
detinue  is  that  the  detention  is  the  violation  of  a  special 
or  acquired  right.  For,  while  it  is  true  that  one  person 
has  the  natural  right  not  to  have  his  property  interfered 
with  by  another,  and  that  wrongful  detention  is  an 
interference  which  would  be  a  violation  of  this  right, 
yet,  viewed  in  this  light,  the  wrongful  act  furnishes 
ground  for  an  action  of  Trover,  and  not  of  Detinue.1 

The  same  act  may  furnish  grounds  for  an  action  of 
Detinue,  but  not  unless  it  is  viewed  in  another  light, 
namely,  as  a  detention  of  property  which  the  defend- 
ant is  under  an  obligation  to  deliver  to  the  plaintiff, 
or,  in  other  words,  a  failure  to  perform  a  special  obli- 
gation,—  a  violation  of  a  special  right,  which  the  plain- 
tiff has  acquired,  not  by  reason  of  his  simple  ownership 
of  the  property,  but  by  reason  of  the  fact  that  there  is 
a  special  relation  between  himself  and  the  defendant, 
such  as  a  bailment.  The  plaintiff  owning  or  having 
the  general  right  to  the  property  which  is  lawfully  in 
defendant's  possession,  has  asserted  that  right  in  such 
a  way  —  e.  g.,  by  demand  —  as  to  acquire  a  special 

i  Kettle  v.  Bromsall,  Willes'  Rep.  120,  where  the  distinction 
is  noticed,  and  it  is  held  that  Trover  and  Detinue  cannot  be 
joined. 


ACTIONS    BASED    OX    ACQUIRED    KIGIfTS.  13 

right  to  the  immediate  possession  of  the  property, 
and  to  put  upon  the  defendant  a  special  obligation  to 
deliver  it  to  him.  Hence  the  judgment  in  the  action 
of  Detinue  is,  in  the  alternative,  for  the  recovery  of 
the  property  or  its  value.  The  special  obligation  to 
deliver  the  property,  similar  to  an  obligation  based  on 
a  promise  and  arising  because  of  the  special  relation  of 
the  parties,  is  thus  recognized  and  enforced.  In  fact, 
the  action  of  Detinue  has  been  brought  upon  a  contract 
to  deliver  a  specific  chattel.1  It  seems  clear,  therefore, 
that  Detinue  is  properly  classed  with  the  actions  of 
Debt,  Covenant,  and  Assumpsit.2 

§  2O.  In  Assumpsit,  both  Special  and  General,  the 
right  and  corresponding  obligation  which  form  the 
basis  of  the  action  are  clearly  personal  to  the  particu- 
lar parties  to  the  contract  or  transaction  which  gives 
rise  to  such  right  and  obligation. 

1  Fitzherbert,  Xatura  Brevium,  p.   138. 

2  These  forms  of  action  are  generally  distinguished  by  the  term 
actions  ex  contractu,  &s  distinguished  from  the  actions  known  as 
ex  delictit,  on  the  theory  that  the  former  are  brought  upon  con- 
tract and  the  latter  for  a  tort  or  wrong.     The  terms,  however,  are 
not   strictly  applicable,   as   the   idea  of   contract    in   its   usually 
understood   sense  does  not  necessarily  enter   into  the  action   of 
Debt  or  that  of  Detinue,  both  of  said  actions  many  times  being 
founded  upon  obligations  arising  from  special  relations  between 
the  parties  other  than  contractual.     Further,  to  say  that  an  action 
is  for  a  wrong  does  not  distinguish  it,  as  every  action  is  for  a 
wrong.     The  writer  submits  that  the  true  basis  of  the  distinction 
which  undoubtedly  does  exist  is  that  the  one  class  of  actions  is 
for  wrongs  which  are  violations  of  original  or  natural  rights. — 
rights  which  belong  to  one  person  as  against  all  others;    while 
the  other  class  is  for  wrongs  which  are  violations  of  special  or 
acquired    rights, —  rights    which    one    person    has    against    some 


PRINCIPLES  OF  COMMON-LAW  i  LEADING. 


SECTION  II. —  DEBT. 

§  21.  Debt  is  one  of  the  earliest  actions  known  to 
the  law.1  It  is  based  upon  the  theory  that  the  defend- 
ant has  something,  usually  a  sum  of  money,  which  he 
is  under  obligation  to  deliver  to  the  plaintiff  by  reason 
of  something  having  been  done  by  or  between  the  par- 
ties which  has  caused  the  obligation  to  arise,  and  that, 
being  under  such  obligation,  the  defendant  detains  this 
something,  known  as  the  debt.  The  plaintiff  may  have 
given  the  defendant  goods  in  return  for  which  the  debt 
is  due,  or  the  defendant  may  have  executed  a  bond 
under  the  terms  of  which  the  debt  has  arisen.  What- 
ever the  facts  may  be,  the  plaintiff  in  the  action  of  debt 
is  suing  to  recover  something  due  to  him,  which  the 
defendant  should,  but  will  not,  deliver  to  him.2  Deten- 
tion is  the  essence  of  the  action  of  Debt,  as  it  is  of 
the  action  of  Detinue,3  but  in  the  former  case  it  is  the 
detention  of  something  the  title  to  which  has  not  yet 
passed  to  the  plaintiff,  while  in  the  latter  it  is  the 
detention  of  a  specific  thing  to  which  the  plaintiff 

other  particular   person  or   persons  who  have   come   into   some 
special  relation  with  him. 

ilvo  <le   Stokes  v.    Richard   Trint,   A.0.    1200,   Selden    Society 
Publications,  Select  Civil  Pleas,  Vol.  1,  Case  38. 

2  In  Brikhed  v.  Wilson,  Dyer  24  b,  an  action  was  brought  in 
debt  for  twenty  quarters  of  malt. 

3  Referring  to  the  action,  we  find  the  phrase  used,  "  plaintiff 
brought  his  action  in  the  debet  and  detinet,"  i.  e.t  owes  and  de- 
tains.   Jevens  v.  Hartidge,  1  Saund.  6.     See  also  Wilson  v.  Hob- 
day, 4  M.  and  S.  121,  where  it  is  held  that  a  declaration  in  debt 
is  good  which  simply  alleges  the  detaining  of  the  money  and  not 
the  owing  of  it. 


ACTIONS    BASED    Olf    ACQUIRED    EIGHTS.  15 

already  has  title.  In  the  common-law  declarations  in 
Debt  this  theory  of  the  wrongful  detention,  by  the 
defendant,  of  something  belonging  to  the  plaintiff,  is 
followed  to  its  logical  conclusion  by  the  demand  for 
damages  for  the  detention  of  the  debt.1  The  sum  de- 
manded as  damages  was  nominal,  but  it  illustrates 
clearly  the  theory  of  the  action. 

§  22.  To  show  a  good  cause  of  action  in  Debt  the 
declaration  should  contain,  in  accordance  with  the 
principle  heretofore  laid  down: 

(a)  A  statement  of  the  right  on  the  part  of  the 
plaintiff;  (6)  A  statement  of  the  wrong  or  violation 
of  the  right  by  the  defendant.  But  the  very  idea  of 
debt  implies  a  right  on  the  part  of  the  plaintiff  and  a 
violation  of  the  right  by  non-payment  of  the  debt.  If 
a  debt  is  shown  to  exist,  a  prima  facie  cause  of  action 
is  shown.  It  happens,  therefore,  that  in  this  form  of 
action  the  right  and  the  wrong  are  stated  together  in 
the  statement  of  the  facts  which  show  the  debt  to  exist. 

§  23.  As  the  action  of  Debt  is  a  very  broad  one, 
the  statement  of  facts  will  differ  with  the  varying 
character  of  the  circumstances  which  have  given  rise 

i Referring  to  the  declaration  in  an  action  of  Debt,  we  read: 
"  although  often  required  had  not  rendered  the  said  160Z  to  the 
said  Mary  *  *  *  and  unjustly  detained  the  same,  where- 
fore she  then  said  she  was  worse  and  had  damage  to  the  value  of 
20 1"  and  then  we  find  "  it  was  then  considered  by  the  Court 
that  the  said  Mary  should  recover  against  the  said  Richard  her 
eaid  debt  and  her  damage  on  occasion  of  the  detention  of  that 
debt  to  sixty  shillings."  Hancocke  v.  Prowd,  1  Saund.  328,  at 
p  330  a. 


16  PKINCIPLES  OF  COMMON-LAW  PLEADING. 

to  the  debt.  To  enumerate  the  many  different  cases 
of  debt  would  be  beyond  the  scope  of  the  present  chap- 
ter. A  few  words,  however,  in  reference  to  the  most 
common  instances  of  the  action  may  be  helpful. 

§  24.     Debt  on  Simple  Contract. 

We  frequently  find  cases  designated  in  the  reports 
as  "  Debt  on  simple  contract."  This  means  that  the 
form  of  the  action  is  in  Debt,  and  that  there  has  been 
a  contract,  oral  or  written,  and  express  or  implied, 
but  not  under  seal,  between  the  parties,  which  has 
created  the  debt.  An  action  to  recover  money  lent 
by  the  plaintiff  to  the  defendant;  money  paid  to  the 
defendant's  use;  money  had  and  received  by  the  de- 
fendant to  the  plaintiff's  use;  for  the  price  of  goods 
sold  and  delivered,  or  of  work,  labor,  and  services,  if 
brought  in  Debt,  is  included  in  the  particular  class 
known  as  Debt  on  simple  contract. 

Actions  in  debt  for  money  lent,  money  had  and 
received,  etc.,  must  not  be  confounded  with  what  are 
known  as  the  common  counts  for  money  lent,  money 
had  and  received,  etc.  The  latter  belong  to  the  class 
of  actions  called  General  Assumpsit  and  will  be 
noticed  hereafter.1 

i  Vaux  v.  Mainwaring:  Fortescue  197.  In  this  case  plaintiff 
brings  an  action  of  debt,  and  alleges  that  the  defendant  bought 
of  the  plaintiff  divers  goods  and  merchandise  for  so  much  money 
as  they  should  be  worth,  to  be  paid  on  request,  and  says  in  fact 
they  were  worth  437 1.  On  demurrer  the  declaration  would  be 
bad. 

"  Debt  is  upon  the  contract  or  sale,  but  Tndebitatus  Assumpsit 
is  an  action  on  the  promise,  and  lies  only  because  of  the  prom- 
ise; if  you  bring  Indebitatus  Assumpsit  for  107.  for  a  horse  sold, 


ACTIONS    BASED    ON    ACQUIRED    EIGHTS.  17 

In  general  it  may  be  said  that  the  distinguishing 
feature  of  the  action  of  debt  on  simple  contract  is,  that 
the  debt  for  which  the  action  is  brought  arises  from 
some  act  of  the  plaintiff,  such  as  something  given  to, 
or  done  by  or  on  behalf  of  the  plaintiff  for,  the  defend- 
ant, in  return  for  which  the  debt  is  due.  The  statement 
of  the  facts  required  in  a  declaration  consists  of  the 
statement  of  this  act  on  the  part  of  the  plaintiff,  whether 
it  be  the  performance  of  some  service  at  the  request  of 
the  defendant,  the  selling  of  goods,  the  loaning  of 
money,  or  any  one  of  the  numerous  other  things  which 
may  have  caused  the  debt. 

§  25.      Debt  on  Specialties. 

An  obligation  to  pay  a  sum  of  money  —  i.  e.,  a  debt 
—  could  be  created  by  a  bond  or  other  agreement 
under  seal.  Such  a  sealed  instrument  was  known  as 
a  Specialty.  In  such  a  case  a  statement  of  the  facts 
causing  the  debt  included  simply  a  statement  of  the 
existence  of  the  bond  or  other  instrument  upon  which 
the  debt  was  founded.  The  debt  arose  from  an  act  on 
the  part  of  the  defendant.  He  himself  created  the 
debt  by  his  execution  of  the  instrument  out  of  which 
it  arose. 

§  26.     Debt  on  Records. 

An  obligation  to  pay  a  sum  of  money  might  be 
created  independently  of  any  action  of  the  parties,  as 

if  it  was  sold  for  more  or  less,  yet  the  plaintiff  shall  recover  what 
it  was  sold  for;  but  if  debt  be  brought  on  that  contract,  if  it  come 
out  to  be  more  or  less,  the  plaintiff  cannot  recover,  for  it  is  a 
praecipe  quod  reddat  ( so  much  money  in  particular ) ." 

2 


18  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

by  a  judgment  of  the  court.  The  manner  of  its  crea- 
tion was  immaterial,  however;  if  it  was  an  obligation 
to  pay  a  sum  of  money,  it  was  a  debt  and  recoverable 
in  the  action  of  Debt.  Hence,  we  have  the  class  of 
debt  actions  known  as  Debt  on  Records.  Here  the 
statement  of  facts  consisted  of  a  statement  of  the  judg- 
ment with  sufficient  detail  to  connect  the  defendant 
with  the  plaintiff  in  respect  to  the  liability  on  the  same. 

§  27.     Debt  on  Statutes. 

Sometimes  a  statute  imposed  a  penalty  and  a  de- 
fendant found  himself  subject  thereto.  Again,  the 
action  of  Debt  was  applicable,  as  the  penalty  was  an 
obligation  to  pay  a  sum  of  money,  and  hence  a  debt. 

Here  it  was  necessary  to  refer  to  the  statute  which 
was  relied  upon  and  to  state  the  facts  which  showed  the 
defendant  to  have  violated  the  same  and  to  have  made 
himself  subject  to  the  penalty. 

§  28.  In  spite  of  the  fact  that  a  statement  of  the 
facts  in  debt  is  a  statement  both  of  the  right  and  the 
wrong,  we  find  the  rule  frequently  laid  down  that  the 
declaration  should  contain  a  statement  of  the  breach 
or  refusal  to  pay  the  debt. 

The  reason  of  this  rule  is  not  quite  clear,  as  when 
sufficient  facts  have  been  alleged  in  the  declaration  to 
show  that  there  is  a  debt,  a  prima  facie  cause  of  action 
has  been  made  out.  The  legal  meaning  of  the  word 
debt  is  something  due,  something  which  should  be  paid 
by  the  defendant  to  the  plaintiff;  given  the  debt,  and 
a  prima  facie  cause  of  action  exists  to  recover  it.  It 
was,  however,  customary  to  allege  a  refusal  on  the  part 


ACTIONS    BASED    ON    ACQUIRED    EIGHTS.  19 

of  the  defendant  to  pay  the  debt.1  The  case  of  Good- 
child  v.  Pledge  2  seems  to  show  that  the  statement  of 
the  breach  was  a  mere  matter  of  form,  and  that  it  was 
not  necessary  to  the  substantial  validity  of  the 
declaration. 

SECTION  III. —  DETINUE. 

§  29.  The  action  of  Detinue  was  in  respect  to  chat- 
tels what  the  action  of  debt  was  in  respect  to  money. 
In  debt  a  recovery  of  the  sum  of  money  due  was  the 
main  object  of  the  action.  In  detinue  recovery  of  a 
specific  chattel  was  the  main  object.  The  action  of 
detinue  was,  perhaps,  as  early  a  crystallization  of  the 
common  law  as  that  of  debt.  At  all  events  we  find  it 

1  See  note,  ante,  p.  14. 

2  1  M.  &  W.  363.    Ames,  Cases  on  Pleading,  37.     The  action  was 
in  Debt  for  £20  for  goods  sold  and  delivered.     The  second  plea 
was  that  when  the  said  sum  of  £20  became  due  and  payable  the 
defendant   paid   it.     This   plea    concluded   to   the   country,   i.    e., 
requested  a  determination  of  the  matter  by  the  jury.     The  rule 
required  a  plea  containing  new  matter  to  conclude  with  a  veri- 
fication   (post,    p.    103).     By   a    special   demurrer    the   question 
whether  or  not  the  plea  should  have  ended  with  a  verification, 
and  hence  whether  or  not  it  contained  new  affirmative  matter, 
was  raised.     It  was  contended  by  counsel  that  the  plea  amounted 
to  a  denial  of  the  refusal  to  pay,  t.  e.,  the  breach,  and,  therefore, 
properly  concluded  to  the  country.     Baron  Parke  says:    "Is  the 
statement  of  the  breach  in  debt  anything  more  than  a  mere  form? 
The   moment   the  goods   are  delivered,   is   there   not   a  cause  of 
action,  throwing  the  proof  of  its  discharge  on  the  defendant?     If 
the  breach  is  mere  form,  you  cannot  traverse  it;    then  your  plea 
is    in    discharge    and    ought    to    conclude    with    a    verification." 
Again  he  says :    "  I  think  it  will  be  found  on  looking  into  the 
cases  that  a  statement  of  the  breach  is  mere  form ;    if  so,  the  plea 
admits  the  debt  and  is  a  plea  in  confession  and  avoidance." 


20  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

among  the  very  earliest  reported  cases.1  So  identical 
were  the  two  actions  in  the  theory  upon  which  recovery 
was  allowed  that  they  were  frequently  joined,  and  we 
have  declarations  which  seek  a  recovery  of  a  debt  for 
goods  sold  and  delivered,  or  in  the  event  that  the  facts 
do  not  warrant  the  conclusion  that  there  was  a  sale, 
then  a  recovery  of  the  specific  goods  on  the  ground 
that  the  defendant  is  wrongfully  detaining  them.2 

§  30.  In  the  action  of  Detinue  the  plaintiff  recov- 
ered the  specific  chattels,  or  in  the  event  they  could 
not  be  returned,  their  value,  together  with  damages 
for  their  detention. 

§  31.  To  show  a  good  cause  of  action  it  is  neces- 
sary for  the  declaration  to  contain: 

(a).  A  statement  of  the  plaintiff's  right. 

The  chattels  should  be  described  with  sufficient 
certainty  for  identification  and  their  value  be  stated; 
it  should  be  alleged  that  they  belong  to  the  plaintiff, 
that  the  defendant  has  possession  of  the  chattels  and 
acquired  it  lawfully,  as  by  finding  or  bailment,  but 
holds  it  subject  to  the  plaintiff's  superior  right  to  im- 
mediate possession  which  has  been  asserted  by  a  de- 
mand.3 The  facts  will  always  show  some  special 
relation  between  the  plaintiff  and  the  defendant,  such 
as  that  of  bailor  and  bailee,  by  which  the  defendant 
has  had,  or  is  assumed  to  have  had,  a  lawful  posses- 

1  Maltravers  v.  Turberville,  Selden  Society  Publications,  Vol. 
3,  Case  8,  1200  A.D. 

22  Saunders,  117b;  Daleton  v.  Janson,  5  Mod.  89,  at.  p.  92. 
*  Kettle  v.  Bromsall,  Willes'  Rep.  120. 


ACTIONS    BASED    ON    ACQUIRED    EIGHTS.  21 

sion  of  the  goods;  that  such  lawful  possession  has 
terminated  and  that  the  plaintiff  accordingly  has  the 
right  to  an  immediate  possession  of  the  goods.  The 
object  of  the  allegation  of  value  is  that,  in  case  the 
goods  themselves  cannot  be  returned,  judgment  may 
be  rendered  for  their  value. 

(6).  A  statement  of  the  wrong,  or  breach  on  the  part 
of  the  defendant. 

Having  shown  the  plaintiff's  right  to  the  possession 
of  the  goods,  the  declaration  should  allege  the  wrong- 
ful act  on  the  part  of  the  defendant  upon  which  the 
action  is  based, —  i.  e.f  his  refusal  to  deliver  the  chattels 
to  the  plaintiff. 

SECTION  IV. —  COVENANT. 

§  32.  The  action  of  Covenant  is  what  its  name  im- 
plies, an  action  based  upon  a  covenant,  or  proimse 
under  seal.  The  object  of  the  action  is  to  recover 
damages  for  breach  of  the  covenant.  The  action  is 
an  exceedingly  old  one;  it  existed  long  before  the 
action  of  assumpsit  was  allowed,  and  illustrates  the 
importance  which  the  early  law  attached  to  a  sealed 
instrument.  With  the  growth  of  the  modern  action 
of  assumpsit,  the  idea  of  the  importance  of  the  seal 
disappeared  and  that  of  consideration  took  its  place. 
The  early  idea,  under  which  recovery  was  allowed  for 
a  breach  of  a  promise,  seems  to  have  been  that  of  un- 
doubted intention  on  the  part  of  the  promisor  to  as- 
sume the  liability,  shown  by  his  solemnly  and  delib- 
erately putting  the  stamp  of  his  individuality  upon  it 


22  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

in  the  shape  of  his  seal.  The  covenantor  was  liable, 
not  because  it  was  just  that  he  should  be  liable,  or 
because  the  covenantee  hr.J  parted  with  anything  011 
the  faith  of  the  covenant,  but  because  he  had  delib- 
erately, by  his  sealed  writing,  announced  that  he  held 
himself  liable.  In  the  transition  from  this  view  of  a 
promisor's  liability  to  that  which  looks  upon  the  con- 
sideration as  the  determining  factor,  it  was  sought 
to  graft  the  idea  of  consideration  upon  the  theory  of 
recovery  upon  a  sealed  instrument,  and  the  rule,  or 
so-called  presumption  of  law,  was  established,  that  in 
the  case  of  a  sealed  instrument  consideration  would 
be  conclusively  presumed.  The  real  fact  of  the  matter 
was  that  there  were  two  distinct  grounds  for  holding 
a  promisor  liable  upon  his  promise,  either  one  of  which 
was  sufficient.  One,  and  the  earlier,  because  he  delib- 
erately intended  to  make  himself  liable  and  so  indicated 
by  the  solemnity  of  the  seal ;  the  other,  because  he  had 
received  a  consideration  which  it  would  be  unjust  to 
the  promisee  to  allow  him  to  keep  unless  he  was  held 
liable  upon  his  promise. 

§  33.  To  show  a  good  cause  of  action  in  Covenant, 
it  is  necessary  for  the  declaration  to  contain : 

(a).  A  statement  of  the  plaintiff's  right.  In  this 
form  of  action  the  right  of  the  plaintiff  is  shown  by 
a  statement  of  two  things. 

(1).  A  statement  of  the  covenant.  It  is  necessary 
to  set  forth  either  the  whole  instrument  or  that  part 
of  it  which  contains  the  covenant  for  breach  of  which 
damages  are  sought,  being  careful  to  allege  that  the 


ACTIONS    BASED    ON    ACQUIRED    EIGHTS.  23 

instrument  is  under  seal.1  The  covenant  is  the  basis 
of  the  special  relation  between  the  parties  out  of  which 
the  plaintiff's  right  arises. 

(2).  A  statement  of  the  performance  or  happening 
of  any  conditions  precedent  to  the  defendant's  covenant. 
If  the  covenant  is  not  conditional,  then  performance 
by  the  plaintiff  need  not  be  alleged,  as  consideration  is 
no  part  of  the  theory  of  recovery.2 

(&).  A  statement  of  the  breach,  or  non-performance, 
on  the  part  of  the  defendant. 

SECTION  V. —  SPECIAL  ASSUMPSIT. 

§  34.  An  action  for  breach  of  a  contract  not  under 
seal  was  known,  when  it  first  came  into  use,  as  a  species 
of  an  action  on  the  case,  "  being  an  action  of  modern 
invention,  to  get  rid  of  the  law  wager/' 3  Later  it  was 
separated  from  that  general  class  of  actions  and  formed 
a  class  by  itself  under  the  name  of  Special  Assumpsit. 

§  35.  The  recovery  in  this  form  of  action  is  upon 
a  promise;  the  basis  of  the  plaintiff's  right  and  the 

1  Moore  t\  Jones,  2  Ld.  Raymond,  1536,  where  it  was  held  that 
although   on  production  of  the   instrument  it  appeared  that   it 
ended  with  the  words  "  in  witness  whereof  we  have  hereunto  set 
our  hands  and  seals,"  still  the  declaration  was  bad  on  demurrer, 
as  it  did  not  allege  the  fact  of  the  sealing  of  the  instrument. 

2  Hornet  v.  Ashford,  3  Bing.  322.     Action  of  Covenant.     The 
plaintiff  alleges  a  covenant  by  the  defendant  "  for  the  consider- 
ation therein   mentioned,"   to  submit  to  certain  restraints,   and 
alleges   as   a   breach   that  he  did   not   submit,   but  exceeded   his 
liberties.     On  demurrer  it  was  argued   that  the  declaration  did 
not  sufficiently  allege  a  consideration.    Held,  that  the  declaration 
was  good. 

3  Lawes,  Pleading  in  Aasumpsit,  p.  520. 


24  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

defendant's  liability  is  the  consideration  for  that 
promise.  Unless  a  consideration  is  alleged  and 
proved,  the  action  must  fail.1 

§  36.  The  contract  for  breach  of  which  a  recovery 
is  sought,  may  be  in  express  terms  and  either  oral  or 
in  writing,  or  may  be  implied  from  the  acts  of  the 
parties, —  i.  e.,  implied  in  fact. 

The  contract  implied  in  fact  is  in  reality  an  express 
contract.  Acts  of  the  parties  in  dealing  with  each  other 
may  tell  as  plainly  the  terms  of  a  contract  between 
them  as  written  or  spoken  words. 

In  any  case,  however,  the  consideration  must  always 
be  present. 

§  37.  To  show  a  good  cause  of  action  the  declara- 
tion should  contain: 

(a).  A  statement  of  the  plaintiff's  right. 

The  right  arises  out  of  a  special  relation  between  the 
parties  created  by  the  contract  which  exists  between 

i  The  exception  in  the  case  of  assumpsit  upon  a  promissory 
note  is  no  real  exception ;  as  the  theory  of  recovery  here  is  simi- 
lar to  that  of  the  action  of  covenant;  the  bill  or  note  is  really  a 
specialty,  and,  except  in  name,  has  always  been  treated  as  such 
by  the  courts.  The  practice  of  suing  in  assumpsit,  where  the 
essence  of  the  action  is  consideration,  upon  a  bill  or  note,  led  to 
many  attempts  to  assimilate  a  bill  or  note  to  an  ordinary  con- 
tract with  respect  to  consideration;  attempts  which  only  caused 
a  confusion  of  ideas  as  to  the  real  nature  of  this  class  of  obliga- 
tions. The  plain  truth  is,  that  a  bill  or  note  is  in  the  nature  of 
a  specialty;  the  defendant  is  liable,  not  because  he  has  received 
a  consideration,  but  because  he  has  by  his  act  in  executing  and 
delivering  the  bill  or  note  declared  himself  to  be  liable,  and  the 
custom  of  merchants  in  such  case  holds  him  liable;  no  consider- 
ation need  be  alleged  or  proved. 


ACTIONS    BASED    ON    ACQCIEED    EIGHTS.  2u 

them.  The  statement  of  the  right,  therefore,  re- 
quires — 

(1).  A  statement  of  a  valid  contract.  This  com- 
prises a  statement  of  a  promise  on  the  defendant's  part 
and  a  consideration  therefor,  which  may  be  either  an 
act  or  a  promise  on  the  plaintiff's  part. 

If  the  consideration  for  the  defendant's  promise  is 
an  act  on  the  plaintiff's  part,  such  as  the  doing  of  some 
work  or  the  delivering  of  some  property,  i.  e.,  if  the 
contract  is  a  unilateral 1  one,  the  performance  of  the 
consideration  must  be  alleged,  for  performance  is  an 
essential  part  of  the  contract.  Until  the  performance 
takes  place  there  is  no  contract. 

If,  however,  the  consideration  for  the  defendant's 
promise  is  another  promise  on  the  plaintiff's  part,  i.  e., 
the  contract  is  a  bilateral 2  one,  then,  to  state  a  valid 
contract,  all  that  need  be  alleged  in  the  way  of  consid- 
eration is  the  making  of  the  promise  by  the  plaintiff, 
and  not  the  performance  of  that  which  is  promised.3 

1  This  term  has  been  very  aptly  applied  to  contracts   of  this 
character  by  Professor  Langdell  in  his  work  on  contracts.     It  is 
imilateral  or  one-sided,  in  the  sense  that  before  it  exists  at  all  as 
a  contract,  performance  on  the  other  side  must  be  complete,  as  it 
is  this  very  performance  that  converts  it  from  a  mere  offer  into  a 
binding  promise  or  contract.     As  a  contract,  therefore,  it  binds 
only  one  party,  the  other  having  already  performed. 

2  This  is  also  a  term  of  Professor  Langdell's  to  designate  that 
other   class   of  contracts  which   are   two-sided   in  the  sense  that 
there   are    promises   to   be   performed    on   both    sides.     Langdell, 
Summary  of  Contracts,  p.  102. 

s  Holcroft  v.  French,  Brownlow,  p.  137,  where  it  was  held  that 
"  if  the  consideration  be  executory,  then  the  Declaration  ought  to 
contain  the  time  and  place  where  it  was  made  and  after  it  ought 
to  be  averred  in  facto  when  it  was  performed  or  executed  ac- 
cordingly; but  if  it  be  by  way  of  a  reciprocal  agreement,  then 


2G  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

(2).  A  statement  of  the  performance  or  happening, 
or  of  some  good  excuse  for  the  non-performance  or  not 
happening  of  whatever  is  conditional  to  performance 
by  the  defendant  of  his  promise. 

The  performance  by  the  plaintiff  of  his  promise  may 
or  may  not  be  conditional  to  performance  by  the  de- 
fendant. If  it  is,  such  performance  must  be  alleged. 
Some  other  act  on  the  part  of  the  plaintiff,  which  he 
is  not  bound  by  his  promise  to  perform,  may  be  made 
by  the  contract  a  condition  precedent  to  the  defendant's 
promise.  In  such  case  performance  of  such  act  must 
be  alleged.  The  defendant's  promise  may  be  condi- 
tional upon  the  happening  of  some  event,  or  the  doing 
of  something  by  some  third  party.  If  so,  the  happen- 
ing of  the  event  or  the  doing  of  the  act  must  be  alleged. 
In  short,  after  the  statement  of  the  contract,  such  facts 
must  be  alleged  as  will  show  that  the  plaintiff  is  not  in 
fault  and  that  the  duty  of  performance  rests  on  the 
defendant. 

(fr).  A  statement  of  the  breach,  i.  e,.,  the  failure  of 
the  defendant  to  do  that  which  the  plaintiff  has  shown 
a  right  to  have  him  do.1 

the  plaintiff  may  count,  that  in  consideration  that  he  hath  prom- 
ised to  do  a  thing  for  the  defendant  the  defendant  hath  promised 
to  do  another  thing  for  him,  then  he  need  not  that  the  declaration 
contain  time  or  place  for  the  consideration  or  otherwise  that  it 
is  performed  and  executed." 

1  The  two  following  cases  illustrate  the  difference  between  the 
two  kinds  of  contracts  as  to  the  necessary  allegations  in  the 
declarations: 

Everard  r.  Hopkins.  Action  upon  the  case.  (Assumpsit.) 
The  plaintiff  alleges  in  his  declaration  that  the  defendant,  a  sur- 
geon, promised  to  cure  the  plaintiff's  servant  for  the  sum  of  five 
marks.  Breach,  that  he  failed  to  cure.  The  sufficiency  of  the 


ACTIONS    BASED    ON    ACQUIRED    EIGHTS.  27 


SECTION  VI. —  GENERAL  ASSUMPSIT. 

§  38.  The  theory  of  recovery  in  the  forms  of  ac- 
tion classed  under  the  head  of  General  Assumpsit  is 
the  same  as  that  in  Special  Assumpsit,  namely,  dam- 
ages for  breach  of  a  promise.  The  promise,  however, 
is  a  fictitious  one.  ]STo  real  promise  exists.  As  every 
promise  to  be  binding  must  have  a  consideration,  the 
consideration  was  found  for  this  fictitious  promise  in 
the  existence  of  the  debt.  It  was,  therefore,  neither 
a  real  promise  nor  a  real  consideration;  only  a  form 
which  was  seized  upon  to  allow  recovery  in  certain 
cases  where  it  was  not  desired  to  use  the  action  of 
Debt. 

Wherever  there  was  a  debt  the  courts  acted  upon 
the  theory  that  there  was  a  promise  to  pay  a  sum  of 
money  equal  to  the  debt,  for  breach  of  which  an  action 
could  be  maintained. 

§  39.  The  several  varieties,  or  counts,  as  they 
were  known,  of  General  Assumpsit,  have  been  vari- 
ously classified  at  different  times  and  by  different 

declaration  was  called  in  question  under  a  demurrer  put  in  at  a 
Subsequent  stage  of  the  action.  The  court  were  of  opinion  that 
the  declaration  was  bad  because  it  did  not  allege  a  payment  of 
the  consideration. 

Nichols  v.  Raynbred,  Hobart,  p.  88 b.  "Nichols  brought  an 
assumpsit  against  Raynbred,  declaring  that  in  consideration  that 
Nichols  promised  to  deliver  the  defendant  to  his  own  use  a  cow, 
the  defendant  promised  to  deliver  him  fifty  shillings.  Demurrer. 
Adjudged  for  the  plaintiff  in  both  coxirts,  that  the  plaintiff  need 
not  to  aver  the  delivery  of  the  cow  because  it  is  promise  for 
promise" 


28 


PRINCIPLES  OF  COMMON-LAW  PLEADING. 


writers,  but  if  there  is  any  virtue  in  classification,  the 
following  will  be  found  to  accord  with  such  reason  as 
may  lie  at  the  bottom  of  it. 


General     Assumpsit, 

or 
Common  Counts. 


(l-H 


(2). 


Indebitatus  As- 
sumpsit, 

or 

Indebitatus 
Counts. 

Quantum       me- 
ruit. 

Quantum    vale- 
bant. 


"Money  paid  to  the  defendant's  use. 

Money  had  and  received. 

Money  lent. 

Interest. 

Account  stated. 

Any  one  of  the  nu- 
merous states  of 
fact  upon  which  a 
debt  may  be 
founded,  the  most 
common  of  which 
are: 


Money 
Counts  (1), 


Other 
Counts  (2). 


For  use  and  occupation, 
For  board  and  lodging, 
For  goods  sold  and  delivered, 
For      goods      bargained      and 

sold, 

For  work,  labor,  and  services, 
For  work,  labor,  and  materials. 


§  4O.  The  reason  for  the  division  of  the  common 
counts  into  the  three  main  heads  seems  to  lie  in  the 
form  in  which  the  consideration  and  promise  is  stated. 

In  the  indebitatus  counts  the  obligation  to  pay  was 
first  alleged  as  a  debt,  and  then  the  existence  of  the 
debt  was  made  a  consideration  for  the  promise  to  pay 
a  sum  of  money  coextensive  with  the  debt. 


ACTIONS    BASED    ON    ACQUIRED    BIGHTS.  29 

In  the  Quantum  meruit  and  the  Quantum  valebant 
counts  the  subject-matter  of  the  debt  —  i.  e.,  the  fact 
that  the  plaintiff  had  performed  work,  sold  and  deliv- 
ered goods,  etc. —  was  alleged  directly  as  a  consideration 
for  the  promise  to  pay  for  them  without  first  alleging 
that  by  reason  of  such  matter  a  debt  arose;  and  the 
promise  was  stated  as  a  promise  to  pay  in  the  case  of 
a  Quantum  meruit,  as  much  as  the  plaintiff  deserved; 
in  the  case  of  the  Quantum  valebani,  as  much  as  the 
goods  were  worth.  These  two  counts  were  similar  and 
sometimes  Used  interchangeably,  though  the  former 
applied  more  properly  to  personal  services  than  to  other 
matter  causing  a  debt. 

The  so-called  money  counts  were  only  called  such 
because  they  related  exclusively  to  money  transactions 
as  the  basis  of  the  debt  which  formed  a  consideration 
for  the  supposed  promise. 

§  41.  To  show  a  good  cause  of  action  in  General 
Assumpsit  the  declaration  should  contain : 

(a).  A  statement  of  the  plaintiff's  right.  The  spe- 
cial relation  between  the  parties  out  of  which  the 
plaintiff's  right  arises  is  really  that  of  debtor  and  cred- 
itor. By  a  fiction,  however,  the  plaintiff  is  allowed  to 
recover  upon  a  supposed  promise.  The  statement  of 
the  plaintiff's  right,  therefore,  includes  two  things: 

(1).  A  statement  of  such  facts  as  will  show  the 
existence  of  a  debt  due  from  the  defendant  to  the 
plaintiff. 

(2).  A  statement  of  the  promise  on  the  part  of 
the  defendant. 


30  PRINCIPLES  OF  COMMON-LAW   PLEADING. 

(6).  A  statement  of  the  wrong,  or  breach  on  the 
part  of  the  defendant. 

§  42.  The  following  forms  will  illustrate  the  man- 
ner of  stating  the  consideration,  promise,  and  breach 
in  General  Assumpsit,  and  also  the  difference  between 
the  indebitatns  counts  and  other  counts. 

(Beginning  as  in  form  of  declaration  ante,  p.  9, 
designating  the  action  as  "  trespass  on  the  case  on 
promises.") 

For  that  whereas  the  said  John  Doe  was  on  the 
5th  day  of  January,  1840,  in  London  indebted  to  the 
said  Richard  Roe  in  the  sum  of  £50,  lawful  money, 
for  divers  goods,  wares,  and  merchandise  by  the  said 
Richard  Roe,  before  that  time,  sold  and  delivered  to 
said  John  Doe,  and  at  his  special  instance  and  re- 
quest, and  being  so  indebted  he,  the  said  John  Doe, 
in  consideration  thereof,  afterwards,  to  wit:  on  the 
day  and  year  last  aforesaid,  in  London  aforesaid, 
undertook  and  then  and  there  faithfully  promised  the 
said  Richard  Roe  to  pay  him  the  said  last-mentioned 
sum  of  money  when  he,  the  said  John  Doe,  should 
be  hereunto  afterwards  requested ;  *  nevertheless  the 
said  John  Doe,  not  regarding  his  said  promise  and 
undertaking,  hath  not  yet  paid  the  said  sum  of  money 
although  often  requested  so  to  do  by  the  said  John  Doe, 
and  has  wholly  neglected  and  refused  and  still  does 
neglect  and  refuse  to  pay  said  sum,  to  the  damage  of 
the  said  Richard  Roe  of  £10,  and  therefore  he  brings 
his  suit. 


ACTIONS    BASED    ON    ACQUIRED    EIGHTS:  31 

(Beginning  as  before.) 

For  that  whereas  on  the  5th  day  of  January,  1840, 
in  London,  in  consideration  that  the  said  Richard  Roe, 
at  the  special  instance  and  request  of  the  said  John 
Doe,  had  before  that  time  sold  and  delivered  divers 
goods,  wares,  and  merchandise  to  the"  said  John  Doe, 
he,  the  said  John  Doe,  undertook  and  then  and  there 
faithfully  promised  the  said  Richard  Roe  to  pay  him 
so  much  money  as  the  said  last-mentioned  goods,  wares,, 
and  merchandise  were  reasonably  worth  when  he,  the 
said  John  Doe,  should  be  thereunto  afterwards  re- 
quested. And  the  said  Richard  Roe  avers  that  the 
said  last-mentioned  goods,  wares,  and  merchandise  at 
the  time  of  the  said  sale  and  delivery  thereof  were 
reasonably  worth  the  sum  of  £50  of  lawful  money  in 
London,  whereof  the  said  John  Doe  afterwards,  to  wit, 
on  the  day  and  year  last  aforesaid,  had  notice. 

(Conclusion  same  as  in  the  above  indebitatus  count 
from  the  *.) 


32  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

CHAPTER   III. 

ACTIONS    BASED    ON    NATURAL    EIGHTS. 

SECTION  I. —  IN  GENERAL. 

§  43,  The  actions  of  Trespass,  Trover,  Replevin, 
Case,  and  Ejectment  are  alike  in  that  they  are  used  to 
redress  similar  wrongs,  wrongs  which  are  violations 
of  original  or  natural  rights.  In  this  respect  these 
actions  differ  from  Debt,  Covenant,  Detinue,  Special 
Assumpsit,  and  General  Assumpsit,  which,  as  explained 
in  the  preceding  chapter,  are  based  on  secondary  or 
acquired  rights. 

§  44.  These  original  or  natural  rights  are  either 
personal  rights  or  property  rights.  Every  man  has  a 
right  to  personal  security.  Any  violation  of  this  right 
by  interference  with  his  person  is  a  wrong  for  which 
he  may  have  redress.  Every  man  has  a  right  to  the 
free  enjoyment  and  use  of  that  which  belongs  to  him, 
whether  it  be  his  family,  his  goods  and  chattels,  or  his 
land. 

In  one  sense  all  are  his  property,  and  in  this  sense 
of  the  word  property,  his  rights  relating  to  them  may 
be  called  property  rights.  A  violation  of  any  one  of 
them  is  a  wrong  for  which  the  person  injured  may 
sue  in  the  courts  for  relief.  At  common  law  he  may 
adopt  one  of  the  five  forms  of  action  above  mentioned, 
according  to  the  nature  of  the  injury  complained  of, 
and  the  kind  of  relief  which  he  wishes  to  secure. 


ACTIONS  BASED  ON   NATURAL   EIGHTS.  33 

§  45.  In  the  actions  of  Trespass,  Trover,  and  Case, 
as  will  be  explained  more  fully  hereafter,  damages 
alone  are  sought,  and  usually  for  more  or  less  direct 
injuries  to  person  or  property.  It  is  significant,  and 
somewhat  illustrative  of  the  state  of  society,  that  we 
find  very  few  of  these  actions  in  the  early  reports  com- 
pared with  the  large  number  involving  questions  re- 
lating to  real  estate.1  The  explanation  of  this  is  not 
difficult  to  find.  It  is  certainly  not  because  the  rights 
of  personal  security  and  enjoyment  of  property,  for 
violations  of  which  these  actions  furnished  the  remedy, 
were  unasserted,  but  because  in  the  beginning  of  or- 
ganized society  men  were  much  more  prone  to  redress 
direct  injuries  to  person  or  property  with  the  sword 
than  by  resort  to  actions  at  law. 

In  further  confirmation  of  this,  such  actions  as  we 
do  find  of  this  character  are  usually  actions  upon  the 
case  for  the  redress  of  indirect  injuries  not  resultant 
upon  direct  forcible  acts  which  would  be  likely  to 
create  hot  blood. 

§  46.  The  actions  of  Replevin  and  Ejectment  are 
different  from  the  other  three  of  this  class,  Trespass, 
Trover,  and  Case,  in  the  nature  of  the  relief  sought. 
Whereas  in  the  latter  damages  is  the  object;  in  the 

1  In  Mr.  Baildon's  introduction  to  Vol.  III.  of  the  Selden  So- 
ciety Publications  (Vol.  I.  of  the  Select  Civil  Pleas),  he  says: 
"  Personal  actions  are  comparatively  rare,  though  several  will  be 
found  in  this  volume.  I  have  paid  particular  attention  to  actions 
of  this  class,  and  have  copied  nearly  all  I  found;  so  that  their 
rarity  in  this  volume  will  show  what  a  very  small  proportion 
they  bear  to  the  mass  of  litigation  concerning  land." 

3 


34  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

former  it  is  specific  recovery :  in  Replevin,  of  chattels ; 
and  in  Ejectment,  of  land. 

SECTION  II. —  TRESPASS. 

§  47.  The  form  of  action  known  as  Trespass,  takes 
its  name  from  the  wrongful  act  for  which  it  furnishes 
a  means  of  redress.  The  legal  meaning  of  the  word 
trespass  is  any  direct  physical  interference  with  the 
person  or  property  of  another.  A  blow  to  the  per- 
son, a  taking  of  personal  property,  a  going  upon  the 
land  of  another,  are  instances  of  trespass.  Injury  to 
the  person  or  property  may  result  from  other  acts, 
such  as  the  putting  of  an  obstruction  in  the  highway, 
or  the  negligently  kindling  of  fire  upon  one's  own  land 
which  spreads  to  a  neighbor's :  these  acts  are  wrongful 
acts  —  they  are  violations  of  rights  just  as  much  as 
direct  acts  are,  but  they  are  not  trespasses,  and  to 
adopt  the  action  of  Trespass  for  their  redress  would 
at  common  law  be  fatal  to  a  recovery. 

§  48.  For  convenience  in  treating  of  the  declaration 
in  the  action  of  Trespass,  the  action  may  be  divided 
into  two  classes: 

(a).  Trespass  for  injury  to  the  person. 

(&).  Trespass  for  injury  to  property. 

§  49.  To  show  a  good  cause  of  action  in  trespass 
for  injury  to  the  person,  the  declaration  need  contain 
only  a  statement  of  the  wrongful  act. 

This  is  only  an  apparent  exception  to  the  general 
rule  that  in  all  forms  of  actions  the  declaration  must 
contain  a  statement  of  the  right  and  of  the  violation 


ACTIONS  BASED  ON   NATURAL  EIGHTS.  35 

of  that  right,  or  the  wrong.  A  little  reflection  will 
show  that  a  formal  statement  by  the  plaintiff  of  his 
right  as  a  human  being  not  to  be  injured  would  be 
absurd.  This  right  is  something  which  every  person 
possesses,  because  of  the  fact  that  he  is  a  person.  It 
cannot  be  questioned  by  the  court  or  controverted  by 
the  defendant.  There  is,  therefore,  no  necessity  of 
alleging  it. 

The  action,  however,  is  none  the  less  based  upon 
the  possession  of  a  right  by  the  plaintiff  and  its  viola- 
tion by  the  defendant.  The  right  does  not  need  to 
be  stated,  because  the  court  is  already  informed  of  it. 
A  statement  simply  of  the  wrong  is,  therefore,  all  that 
is  required. 

§  5O.  In  trespass  for  injury  to  property,  the  tres- 
pass complained  of  may  be  either  to  personal  property 
or  to  real  estate. 

The  right  not  to  have  one's  property  injured  belongs 
to  every  one,  but,  given  an  injury  or  trespass,  one  must 
show  that  the  property  injured  was  his,  in  order  to 
show  that  he  is  the  wronged  person,  and  the  one  entitled 
to  recover.  This  is  so  whether  it  be  personal  or  real 
property  which  is  affected. 

§  51.  To  show  a  good  cause  of  action  in  trespass 
for  injury  to  property  real  or  personal,  the  declaration 
should  contain: 

(a).  A  statement  that  the  property  injured  was  the 
plaintiffs.1  For  the  purposes  of  the  action,  legal  own- 

1  Dannet    f.    Collingdell,    2    Shower    395 ;    Burser    V.    Martin, 
Croke's   Jac.    46.     The   latter   case   was    as   follows:      Action   of 


36  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

ership  is  not  necessary.  Since  the  incidents  of  owner- 
ship, and  among  them  the  right  not  to  have  the  prop- 
erty injured,  prima  facie,  follow  possession,  possession 
was  deemed  sufficient. 

The  possession  which  gives  one  the  right  to  recover 
for  injury  to  personal  property  differs  from  that  in 
the  case  of  real  property.  In  the  former  case  the 
possession  may  be:  (1),  bare,  naked  possession  un- 
coupled with  right;  (2),  possession  coupled  with  own- 
ership; or,  (3),  ownership  coupled  with  the  right  to 
immediate  possession,  designated  frequently  as  con- 
structive possession.  In  the  case  of  real  property, 
actual  possession  is  necessary  to  support  the  action ;  1 
the  ownership  may  or  may  not  be  in  the  plaintiff.  The 
third  case  mentioned  in  respect  to  personal  property, 
that  of  ownership  coupled  with  the  right  of  immediate 
possession,  is  not  sufficient  to  support  the  action  of 
trespass  in  respect  to  real  property.  The  owner  must 
first  regain  actual  possession  of  the  land.2 

Trespass.  The  plaintiff  alleges  in  his  declaration  the  taking  of 
a  horse  from  the  person  of  the  plaintiff.  Plea,  not  guilty.  Ver- 
dict for  plaintiff.  Defendant  moves  in  arrest  of  judgment,  be- 
cause the  plaintiff  does  not  allege  that  the  horse  was  his  horse, 
or  that  it  was  taken  from  the  plaintiff's  possession.  Judgment 
for  the  defendant. 

1  Bedingfreed  V.  Onslow,  3  Lev.  209,  where  the  principle  is  laid 
down  that  only  the  person  who  has  the  possession  in  fact  of  the 
real  property  to  which  an  injury  has  been  done,  can  maintain  an 
action  of  trespass  quare  dausum  fregit;   one  owning  a  reversion- 
ary interest  might  bring  an  action  of  case  for  the  injury  done, 
but  not  of  trespass. 

2  It  is  not  sufficient  to  regain  possession  after  the  trespass  has 
been  committed.     In  an  action  of  trespass,  quare  clausum  fregit, 
it  appeared  at  time  of  trespass  the  premises  were  in  occupation 
of  L.,   the   plaintiff's   lessee.     Plaintiff  offered   to  show   she    re- 


ACTIONS  BASED  ON   NATURAL  EIGHTS.  37 

It  will  be  seen  that  when  the  plaintiff  has  connected 
himself  with  the  property  by  the  necessary  allegation 
of  possession,  the  natural  right  which  he  possesses  not 
to  have  his  property  injured  attaches  to  the  particular 
property  in  question.  As  the  court  is  fully  informed 
of  the  existence  of  this  right  there  is  no  need  of  a  formal 
statement  of  it,  and  there  is  nothing  left  for  him  to 
allege,  but 

(&).  A  statement  of  the  wrongful  act  on  the  part  of 
the  defendant. 

It  has  been  thought  somewhat  singular  that  the 
action  of  trespass  was  allowed  for  injury  to  a  man's 
servant,  wife,  or  child,  by  which  he  lost  their  services 
or  society.  The  explanation  seems  to  be  that  they  were 
regarded  as  property;  that  certain  benefits  resulted 
from  their  possession,  and  that  a  direct  act  of  inter- 
ference with  them,  which  resulted  in  depriving  a  man 
of  these  benefits,  was  just  as  much  a  trespass  as  an 
act  of  interference  with  a  man's  horse,  by  which  he  was 
deprived  of  its  use.  The  fact  that  the  object  injured 
in  the  case  of  the  servant,  for  example,  was  a  distinct 
personality  separate  and  apart  from  the  master,  so 
that  the  same  act  which  was  a  trespass  to  property 
from  the  master's  standpoint,  was  also  a  trespass  to 
the  person  from  the  servant's  point  of  view,  was  im- 

sumed  possession  of  the  premises  after  the  trespass  was  com- 
mitted, but  before  action,  which  was  rejected  by  the  Judge. 
Held,  Evidence  not  admissible  and  that  trespass  is  not  maintain- 
able by  the  person  who  comes  into  possession  after  the  commis- 
sion of  the  trespass.  Pilgrim  v.  Southampton  &  Dorchester  Ry. 
Co.,  18  Law  J.  C.  P.  330.  A  lessor  cannot  maintain  an  action  of 
trespass  Holmes  v.  Seely,  19  Wend.  507;  Tobey  v.  Webster,  3 
Johnson,  468. 


38  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

material.  And,  when  one  considers  it,  there  is  really 
nothing  particularly  degrading  to  the  family  relations 
in  this  way  of  looking  at  the  matter;  for  while  we 
have  in  modern  times  eliminated  most  of  the  ideas 
which  made  man  the  absolute  master  over  his  house- 
hold, we  still  must  concede  a  certain  analogy  between 
one's  right  to  the  uninterrupted  enjoyment  of  the  so- 
ciety and  services  of  the  members  of  his  household,1 
and  his  right  to  the  enjoyment  of  the  benefits  which 
accrue  from  the  possession  of  property.  If  a  violation 
of  this  right,  by  direct  act  of  interference,  can  be 
redressed  by  action  of  trespass  in  the  one  case,  why 
not  also  in  the  other  ?  2 

SECTION  III. —  TROVER. 

§  52.  The  action  known  as  Trover  or  Conversion, 
and  sometimes  as  Trover  and  Conversion,  has  for  a 
long  time  been  one  of  the  most  common  forms  of  ac- 
tions adopted  for  redress  of  injuries  to  personal  prop- 
erty whereby  plaintiff  is  deprived  of  possession.  The 
action  was  formerly  one  of  the  many  actions  included 
under  the  head  of  Trespass  on  the  case,  or  Case.3 

1  Jones  v.  Brown,  1  Espinasse,  217. 

2  Where  the  benefits1  no  longer  existed,  as  in  case  of  termination 
of  the  service  or  separation  of  the  wife,  the  man  could  not  show 
that  anything  that  was  his  had  been  interfered  with,  and  hence 
neither  trespass   nor   case  was  maintainable.      Wheedon   f.   Tim- 
brell,  5  Durnf.  &  East,  357;  Postlethwaite  r.  Parkes,  3  Burrows, 
1878. 

8  In  Small's1  Declarations,  published  in  1693,  we  find  both  the 
action  of  Trover  and  that  of  Assumpsit  classed  as  Trespass  on 
the  case. 


ACTIONS  BASED  ON  NATURAL  EIGHTS.  39 

§  53.  The  peculiar  facts  which,  supported  the  ac- 
tion as  an  action  on  the  case,  were  the  losing  of  goods 
by  the  plaintiff,  the  finding  by  the  defendant,  and  the 
subsequent  wrongful  converting  of  the  goods  by  him 
to  his  own  use.  It  will  thus  be  noted  that  in  its  orig- 
inal form  the  gist  of  the  action  was  the  wrongful  con- 
verting of  the  goods.  The  matter  of  the  plaintiff 
having  lost  them  was  merely  an  incident ;  so  was  the 
fact  of  the  defendant  having  found  them.  These  facts 
made  no  difference  in  the  wrongfulness  of  the  act  of 
the  defendant  in  converting  them  to  his  own  use.  The 
act  would  have  been  just  as  wrongful  and  just  as 
actionable  if  the  plaintiff  had  placed  the  goods  in  the 
defendant's  possession  to  keep  for  him  and  the  de- 
fendant had  converted  them,  or  if  the  plaintiff,  while 
retaining  the  ownership,  had  lost  possession  and  the 
defendant  had  acquired  it  in  any  other  way. 

§  54.  The  reluctance  to  adopt  new  forms  and  the 
predisposition  to  follow  the  path  already  made  safe 
by  precedent,  which  has  always  been  characteristic  of 
courts  and  lawyers,  coupled  with  the  evident  adapta- 
bility of  this  form  of  action  to  all  cases  of  a  wrongful 
exercise  of  dominion  over  personal  property,  led  to  its 
extension  to  all  acts  of  interference  with  personal 
property  where  the  plaintiff  was  deprived  of  posses- 
sion. As  thus  broadened,  the  action  became  a  sepa- 
rate form,  and  instead  of  being  called  an  action  of 
trespass  on  the  case  for  trover  and  conversion  (finding 
and  converting),  was  known  simply  as  an  action  of 
Trover  or  Conversion.  The  element  of  losing  and 
finding  remained  for  a  long  time  as  a  formal  allega- 


40  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

tion  in  the  declaration,  though  manifestly  a  pure  fic- 
tion in  the  majority  of  cases.1  As  it  did  not  have  to 
be  proven  and  could  not  be  denied,  no  difficulty  arose 
from  this. 

§  55.  The  use  of  the  term  conversion  as  descrip- 
tive of  all  the  wrongful  acts  which  were  redressed  by 
this  form  of  action,  and  the  practice  of  alleging  the 
act,  whatever  the  proof  might  show  it  to  be,  -as  a  con- 
verting to  the  use  of  the  defendant,  led  to  some  em- 
barrassment. For  example,  the  action  of  trover  was 
adopted  to  recover  damages  for  a  converting  by  the 
defendant  of  the  plaintiff's  horse  to  his  own  use;  the 
facts  as  proved  would  perhaps  show  that  the  defend- 
ant, having  borrowed  the  plaintiff's  horse,  gave  it  to 
X,  who  rode  it  so  hard  that  it  died.  This  was  any- 
thing but  a  converting  by  the  defendant  of  the  horse 
to  his  own  use,  at  least  in  the  original  sense  of  the 
term.  To  meet  this  difficulty  a  rule  came  into  exist- 
ence which  has  ever  since  played  an  important  part 
in  the  action  of  trover.  It  was  to  the  effect  that  a 
wrongful  refusal  by  the  defendant  to  give  up  the 
property  was  conclusive  evidence  of  his  having  con- 
verted it  to  his  own  use.2  Thus,  in  the  above  instance, 
the  plaintiff  would  demand  the  horse;  the  defendant 

13  Bl.  Comm.  152;  1  D'Anvers'  Abridgment,  23;  Isaak  v. 
Clark,  2  Bulstrode,  306. 

2  "  From  a  very  early  period  it  has  been  holden,  that  it  is  good 
evidence  prima  facie  to  prove  a  conversion,  that  the  plaintiff 
require  the  defendant  to  deliver  the  goods,  and  he  refused;  and 
thereupon  it  shall  be  presumed  he  converted  them  to  his  own 
use."  Chancellor  of  Oxford's  Case,  10  Co.  56:  Agar  v.  Lisle, 
Hutt.  10. 


ACTIONS  BASED  ON   NATURAL  EIGHTS.  41 

could  not  deliver  it  in  response  to  the  demand,  nor 
could  he  show  that  his  failure  to  deliver  it  was  justi- 
fiable, as  his  act  of  parting  with  the  horse  was  a 
wrongful  one.  He  was,  therefore,  in  the  position  of 
wrongfully  refusing  to  deliver  the  property,  and  under 
the  rule  above  referred  to,  the  act  of  conversion  was 
deemed  proved. 

§  56.  This  form  of  action,  however,  was  destined 
to  a  broader  field  than  those  cases  where  there  was  an 
actual  conversion  or  where  there  was  a  wrongful  re- 
fusal, and  a  way  was  soon  found  to  apply  it  to  all 
actions  where  there  was  a  wrongful  act  depriving 
plaintiff  of  the  possession  of  the  goods.  It  was  by  a 
gradual,  but  a  very  radical  change,  in  the  meaning  of 
the  term  conversion.,  so  as  to  include  all  acts  of  the 
kind  referred  to.  The  "  converting  of  goods  to  the 
defendant's  own  use,"  became  the  exercising  by  the 
defendant  of  any  "  act  of  dominion "  over  the  goods. 
This  is  the  final  development  of  the  idea,  and  in  this 
form  it  has  been  laid  down  repeatedly. 

The  common-law  action  of  conversion  became,  there- 
fore, a  means  of  redress  for  a  very  large  class  of  wrong- 
ful acts.  The  term  conversion  became  a  general  term 
to  designate  these  acts. 

§  57.  A  great  deal  will  be  found  in  the  reports 
about  conversion  being  established  by  the  proof  of 
other  wrongful  acts  affecting  the  property  from  which 
conversion  will  be  conclusively  presumed.  This  rule 
is  generally  applied  to  the  case  of  a  wrongful  refusal 


42  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

to  deliver  up  the  goods,-  mention  of  which  has  been 
made  above.  It  is  believed  that  since  the  scope  of 
the  action  has  been  broadened  in  the  manner  in  which 
it  has,  there  is  no  reason  or  necessity  for  the  invoking 
of  this  rule.  There  is,  of  course,  a  literal  converting 
to  one's  own  use,  such  as  eating  or  wearing  of  the 
goods,  as  the  case  may  be;  such  act  is  wrongful  and 
actionable,  and  is  one  of  the  acts  which  will  support 
the  action  of  trover.  There  are  other  acts  of  inter- 
ference with  property,  such  as  burning  up  another's 
property  which  happens  to  be  in  one's  possession,  or 
selling  property  which  has  been  delivered  to  one  as 
bailee,  or  taking  property  from  the  possession  of  an- 
other, or  refusing  to  deliver  up  property  which  is  de- 
manded by  the  rightful  owner,  which  are  all  just  as 
wrongful  and  just  as  actionable  as  the  literal  conver- 
sion of  property;  but  they  are  not  conversion  in  its 
original  sense,  nor  does  it  accomplish  anything  or  tend 
to  clearness  to  say  that  they  are  evidence  of  conver- 
sion,— •  they  may  be  evidence  and  they  may  not  be. 
Certainly  there  is  no  logical  connection  between  burn- 
ing property  up  and  an  intention  to  convert  it  to  one's 
own  use.  And  the  refusal  to  deliver  property  to  the 
owner  is  just  as  consistent  with  having  lost  it  as  having 
used  it.  It  is  only  misleading  in  such  cases  to  say  that 
conversion  is  the  ultimate  thing  to  be  proved  and  that 
such  acts  are  conclusive  evidence  of  it.  In  the  broader 
sense  in  which  the  term  conversion  is  used  such  acts 
are  themselves  acts  of  conversion.  While  they  have 
been  so  denominated  in  the  case  of  all  the  other  acts 
which  may  now  support  this  action,  it  is  still  custom- 


ACTIONS  BASED  ON   NATURAL  BIGHTS.  43 

ary  to  treat  the  demand  and  refusal  as  evidence  of  an 
imaginary  conversion.1 

§  58.  To  show  a  good  cause  of  action  in  trover,  the 
declaration  should  contain : 

(a).  A  statement  showing  that  the  property  be- 
longed to  the  plaintiff.  This  is  to  so  connect  him  with 
the  property  that  it  may  appear  that  it  is  the  plain- 
tiff's right  not  to  have  his  property  interfered  with 
which  has  been  violated.  The  plaintiff  may  rely  upon 
an  actual  possession  or  upon  a  right  to  an  immediate 
possession.  Either  shows  sufficiently  the  right  of  the 
plaintiff  not  to  have  the  property  interfered  with. 

As  we  have  already  seen  (§  54)  it  was  formerly 
customary  to  allege  the  possession  in  the  plaintiff,  the 
losing  by  him,  and  the  finding  by  the  defendant,  but 
the  very  earliest  cases  do  not  show  that  the  allegation 
of  losing  and  finding  was  ever  held  material. 

(&).  A  statement  of  the  wrongful  act  or  conversion 
on  the  part  of  the  defendant. 

The  gist  of  the  act  of  conversion  was  its  wrongful- 
ness.  An  act  of  interference  with  the  property  of 
another  which  was  justifiable  was  not  wrongful,,  and 
therefore  was  not  a  conversion.  Such  an  act  might  be 
a  justifiable  trespass,  but  there  is  no  such  thing  as  a 
justifiable  conversion. 

iln  Baldwin  r.  Cole,  6  Mod.  212,  Chief  Justice  Holt  Seems  to 
have  thought  that  this  rule  as  to  demand  and  refusal  being  evi- 
dence of  conversion  was  superfluous,  for  he  says  that  "  the  very 
denial  of  goods  to  him  who  has  a  right  to  demand  them  is  an 
actual  conversion." 


44  PEINCIPLES  OF  COMMON-LAW  PLEADING. 

§  59.  If  this  distinction  be  borne  in  mind  the  ne- 
cessity and  office  of  the  demand  and  refusal  about 
which  so  much  is  said  in  dealing  with  the  action  of 
trover,  will  be  clearly  understood.  A  proper  state- 
ment of  the  conversion  involves  the  statement  of  some- 
thing besides  the  mere  act  of  interference  with  the 
property.  It  requires  the  statement  of  such  facts  as 
will  show  the  act  to  be  wrongful.  These  facts  are 
either:  (1),  that  the  act  of  interference  was  wrongful 
in  the  beginning,  i.  e.,  was  a  direct  interference  with 
the  possession,  actual  or  constructive,  of  the  plaintiff; 
or,  (2),  that  the  act  of  interference  was  a  wrongful 
keeping  of  the  property  or  refusal  to  give  it  up  in  re- 
sponse to  a  demand  on  the  part  of  the  plaintiff. 

In  the  former  case  no  demand  and  refusal  is  neces- 
sary to  make  the  act  wrongful,  and,  therefore,  it  need 
not  be  alleged.  In  the  latter  case  the  act  which  is 
wrongful  is  the  refusal,  and  this  is  the  act  which  is 
really  the  ground  of  action,  though,  as  pointed  out 
above,  it  is  usually  treated  as  evidence  of  a  supposed 
converting  of  the  property.  As  it  is  in  reality  the 
wrongful  act,  it  must  of  necessity  be  alleged. 

It  will  be  observed  that  where  the  plaintiff  relied 
upon  actual  possession  as  the  basis  of  his  right  in  the 
property  which  he  claims  has  been  violated,  there  is 
no  room  for  the  element  of  demand  and  refusal.1  For 
the  conversion  here  is  always  an  original  wrongful 
taking  of,  or  interference  with,  the  property. 

1  This  is  also  true  where  the  plaintiff  relies  upon  what  is 
known  as  constructive  possession. 


ACTIONS  BASED  ON   NATUKAL  RIGHTS.  45 

SECTION  IV. —  REPLEVIN. 

§  60.  The  action  of  replevin  was  originally  used 
as  the  remedy  for  an  illegal  distress. 

Distress  was  the  common-law  successor  of  the  old 
feudal  remedy  of  forfeiture.  Under  the  feudal  sys- 
tem if  a  tenant  failed  in  the  various  services  which 
were  required  of  him,  such,  as  attending  the  lord  in 
time  of  war,  or  tilling  the  soil,  or  attending  to  the 
lord's  courts  in  times  of  peace,  the  lord  might  claim 
forfeiture  of  the  land.1 

§  61.  Under  the  common  law,  instead  of  the  land 
itself  being  subject  to  forfeiture  or  seizure,  the  chat- 
tels of  the  tenant  which  were  upon  the  land  were 
subject  to  be  seized  or  distrained  by  the  lord  for  any 
failure  by  the  tenant  in  respect  to  the  incidents  of  his 
tenure.2  The  services  required  of  the  tenant  which 
were  incident  to  his  tenure  became  reduced  to  certain 
fixed  charges  upon  the  land,  such  as  rent,  and  the 
seizure  by  the  lord  of  the  tenant's  chattels  was  usually 
for  non-payment  of  rent  or  some  like  charge.  This 
was  designated  a  Distress.  It  was  against  the  abuse 
of  this  power  that  the  action  of  replevin  was  allowed 
as  a  remedy  to  the  tenant. 

The  action  of  Replevin  is  supposed  to  have  been  de- 
vised by  Glanvil,  which  would  fix  its  origin  as  some- 
where in  the  latter  half  of  the  twelfth  century. 

§  62.  The  purpose  of  the  action  of  replevin,  in  its 
finally  established  form,  was  to  restore  immediately 

1  Gilbert,  Replevin,  p.  2. 

2  Hammond,  Nisi  Prius,  p.  433. 


46  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

to  the  tenant  his  chattels,  so  that  he  might  proceed 
uninterruptedly  with  his  husbandry,  and  also  to  give 
him  damages  for  the  wrongful  seizure.  The  latter 
object,  however,  was  subordinate,  the  recovery  of  the 
chattels  being  the  real  object  of  the  action.  The  orig- 
inal proceedings  in  replevin  were  so  peculiar,  both 
by  reason  of  their  form  and  of  the  practice  and  rules 
relating  to  them,  that  it  has  rendered  the  action  a 
somewhat  difficult  one  to  understand.  It  would  be 
beyond  the  scope  of  this  book  to  go  into  the  mass  of 
ancient  law  concerning  replevin.  It  may  be  found  in 
the  references  cited.1 

§  63.  There  is,  however,  a  certain  feature  of  re- 
plevin in  its  early  form  which  it  is  important  to  under- 
stand. This  is  that  it  was  really  a  combination  of 
two  things:  (1),  the  proceedings  by  which  a  specific 
recovery  of  the  chattels  was  had;  and,  (2),  the  pro- 
ceedings by  which  the  legality  of  the  seizure  or  dis- 
tress was  determined.  By  the  first  proceedings  the 
tenant  really  accomplished  all  he  desired, —  i.  e.,  he  got 
back  his  chattels.  The  second  proceedings  he  proba- 
bly would  have  preferred  not  to  continue,  but  in  them 
lay  the  protection  to  the  lord  in  case  he  had  rightfully 
distrained,  since  here  the  matter  of  the  legality  of  the 
distress  was  determined.  Hence  as  a  condition  of  the 
tenant  having  the  benefit  of  the  first  proceedings  he 
was  required  to  give  security  that  he  would  proceed 
with  the  second.  The  form  which  the  second  took  was 

i  Hammond,  Nisi  PriuS,  pp.  372-460;  Gilbert,  Replevin,  Chap- 
ter 2. 


ACTIONS  BASED  ON  NATUEAi,  EIGHTS.  47 

that  of  an  action  for  damages  for  an  alleged  illegal 
taking  and  detention. 

§  64.  Originally  the  proceedings  for  specific  re- 
covery were  entirely  separate  from  the  action  for  dam- 
ages. They  were  before  it  in  point  of  time ;  until  they 
were  concluded,  no  process  was  served  upon  the  defend- 
ant to  appear  in  the  action  for  damages.  They  were 
instituted  by  a  writ  which  the  plaintiff  procured  from 
the  Court  of  Chancery,  commanding  the  sheriff  to 
seize  and  restore  to  him  his  chattels,  as  a  condition  of 
procuring  which  writ  he  was  obliged  to  give  security 
to  prosecute  an  action  to  determine  the  right  to  the 
chattels  and  to  return  them  to  the  defendant  if  he 
could  not  show  that  the  seizure  was  illegal.1  To  this 
writ  the  sheriff  made  a  return  according  to  the  facts, 
and  if  the  return  was  to  the  effect  that  he  was  unable 
to  replevy  the  chattels  because  he  could  not  find  them 
or  because  the  defendant  had  sold  or  otherwise  disposed 
of  them,  the  plaintiff  was  entitled  to  various  other  writs 
for  the  purpose  of  accomplishing  the  object  desired.2 
The  final  outcome  of  the  whole  matter  was  that  the 
plaintiff  either  did  or  did  not  get  back  his  chattels. 
Here  ended  the  preliminary  proceedings  for  the  spe- 
cific recovery  of  the  chattels  and  at  this  point  the 
action  for  damages  began.3  If  the  plaintiff  had  suc- 

1  This  requirement  as  to  security  for  the  return  of  the  chattels 
was  not  originally  required,  but  was  imposed  by  the  statute  of 
Westminster,  2,  c.  2. 

2  Gilbert,  Replevin,  80,  91,  et  seq. 

s  This  distinction  between  the  proceeding  to  recover  actual 
possession  of  the  goods  and  the  action  resulting  from  the  pro- 
ceeding was  recognized  by  Chief  Justice  Willes  in  Pearson  v. 


48  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

ceeded  in  recovering  his  chattels,  as  he  was  under  bond 
to  prosecute  an  action,  the  only  thing  left  for  him  to 
do  was  to  proceed  with  it. 

If,  on  the  contrary,  the  sheriff  had  been  unable  to 
.restore  to  him  the  chattels  because  of  their  destruc- 
tion, sale,  or  concealment  by  the  defendant,  the  plain- 
tiff could  still  proceed  with  his  action,  and,  as  will  be 
seen  later,  the  full  value  of  the  chattels  would  be 
included  in  his  damages. 

§  65.  The  manner  in  which  the  plaintiff  proceeded 
with  his  action  was  similar  to  that  in  any  other  action. 
The  defendant  was  summoned  into  court 1  to  answer 
the  plaintiff's  declaration,  in  which  was  set  forth  the 
facts  constituting  the  plaintiff's  cause  of  action  for 
damages  for  the  wrongful  taking  and  detention,  and 
to  which  reference  will  be  made  more  fully  hereafter. 

Roberts,  Willes'  Reports,  668'  (1755),  where  he  says,  p.  672, 
"  There  are  two  forms  of  replevins,  one  only  to  have  the  goods 
again  which  may  be  by  plaint  in  the  Sheriff's  Court,  or  a  man- 
datory writ  to  the  Sheriff  and  another  by  way  of  action  to  re- 
cover damages,"  and  was  used  by  him  as  a  ground  of  deciding 
the  case.  At  that  time,  however,  the  two  proceedings  had  be- 
come so  amalgamated  into  one,  and,  in  spite  of  the  peculiar 
method  of  obtaining  the  principal  relief  at  the  commencement 
of  the  action,  had  been  so  long  regarded  as  an  action  in  rem., — 
i.  e.,  for  specific  recovery, —  that  the  authorities  scarcely  war- 
ranted Chief  Justice  Willes  in  using  the  distinction  as  the  basis 
of  his  decision  in  the  case.  The  case  of  Millard  v.  Caffin  (2  Sir 
W.  Blackstone,  1330),  in  1778,  and  that  of  Fletcher  v.  Wilkins 
(6  East,  283),  in  1805,  show  the  way  in  which  the  different  pro- 
ceedings in  replevin  had  all  come  to  be  regarded  as  parts  of  a 
single  action  in  rem. 

i  Gilbert,  Replevin,  pp.  83-85. 


ACTIONS  BASED  ON   NATUBAL  EIGHTS.  49 

§  66.  This  method  of  proceeding  by  writ  was 
found  to  be  extremely  cumbersome,  and  it  was  dis- 
covered that  little  was  accomplished  by  the  proceed- 
ings subsequent  to  the  writ  itself  compared  with  the 
time  and  trouble  involved.  As  a  consequence,  they 
gradually  fell  into  disuse.  By  a  statute,1  it  was  then 
provided  that  upon  an  ordinary  complaint,  or  "  plaint," 
as  it  was  called,  to  the  sheriff  and  the  giving  of  the 
necessary  security,  the  sheriff  could  at  once  recover  the 
chattels  by  issuing  a  precept  to  his  bailiff  to  seize  them. 
At  the  time  of  the  seizure  the  action  was  also  begun 
by  the  bailiff  summoning  the  defendant  to  appear  in 
court  to  answer  the  plaintiff's  declaration.2  It  will 
thus  be  seen  that  the  summary  method  of  restoring  the 
chattels  to  the  plaintiff  was  practically  incorporated 
into  the  action  itself. 

§  67.  This  change  in  the  method  of  proceeding 
resulted  in  the  disappearance  of  a  practice  which  pre- 
vailed of  framing  the  declaration  in  replevin  according 
to  the  result  of  the  sheriff's  efforts  to  seize  the  chattels 
and  restore  them  to  the  plaintiff. 

Under  the  old  method  of  recovering  the  chattels 
in  the  proceeding  by  writ,  if  the  sheriff  was  success- 
ful in  restoring  the  goods  to  the  plaintiff,  the  declara- 
tion in  the  action  alleged  the  detention  as  a  completed 
act,  and  was  said  to  be  in  the  detinuit  (he  detained). 
If  the  sheriff  was  not  successful  in  restoring  the  chat- 
tels to  the  plaintiff,  the  declaration  alleged  the  de- 

1  Statute  of  Marlbridge,  c.  21. 

2  Gilbert,  Replevin,  p.  80. 

4       • 


50  PBINCIPLES  OF  COMMON-LAW  PLEADING. 

tention  as  still  continuing,  and  it  was  said  to  be  in 
the  detinet  (he  detains).  In  the  one  case  the  damages 
were  limited  to  the  injury  suffered  by  the  detention; 
in  the  other,  they  included  also  the  value  of  the  goods. 
If  only  a  part  of  the  goods  were  restored,  the  declara- 
tion was  in  the  detinuit  as  to  those  which  were  restored, 
and  in  the  detinet  as  to  the  rest.1 

§  68.  But  with  the  new  method  of  commencing 
the  action  for  damages  at  once  upon  the  institution 
of  the  proceedings  by  plaint  to  the  sheriff,  it  must 
have  happened  frequently  that  the  declaration  was 
made  out  at  the  commencement  of  the  proceeding,  or 
at  all  events  before  the  results  of  the  sheriff's  efforts 
to  find  and  restore  the  goods  could  be  known  with  cer- 
tainty, and  it  became  impracticable  to  observe  this  dis- 
tinction between  declaring  in  the  detinet  and  in  the 
detinuit.  The  declaration  was  therefore  always  made 

i  In  Small's  Declarations,  Replevin,  p.  34,  will  be  found  an 
example  of  this,  which  appears  to  have  been  taken  from  the 
records  of  an  actual  case.  As  instances  of  this  sort  of  declara- 
tions are  rare,  I  quote  this  declaration  in  full: 

"as. :  W.  Burton,  of  L.  Chaplain,  and  B.  W.  were  summoned 
to  answer  unto  J.  J.  of  a  Plea  wherefore  they  took  the  Cattel  of 
him  the  said  J.  J.  and  them  unjustly  detained  against  the  sure- 
ties and  pledges,  etc.  And  whereupon  the  said  J.  J.,  by  J.  C.,  his 
attorney,  complaineth  that  the  said  W.  and  B.  the  day,  etc.,  in 

the  year,  etc.,  In  the  Town  of  H.,  in  a  certain  place  called , 

they  took  four  score  sheep  of  him  the  said  John,  and  seventy 
sheep  thereof  they  unjustly  detained  until,  etc.  And  ten  sheep 
residue  thereof  of  the  price  of  twenty  shillings  as  yet  unjustly 
detain  against  the  sureties  and  pledges,  etc.  Whereupon  he  saith 
that  he  is  the  worse,  and  hath  damage  to  the  value  of  £20,  and 
thereupon  he  bringeth  his  suit  and  prayeth  that  the  said  W.  and 
B.  may  secure  the  delivery  of  the  said  10  sheep  unto  him,  etc." 


ACTIONS  BASED  ON   NATUKAL  EIGHTS.  51 

out  in  the  detinuit,  but  the  damages  recovered  included 
the  value  of  the  chattels  in  case  they  were  not  restored 
to  the  plaintiff,1  and  for  this  purpose  it  was  customary 
to  allege  their  value.2 

§  69.  The  distinction  between  the  so-called  action 
of  replevin  in  the  detinuit  and  that  in  the  detinet  was 
never  anything  but  a  distinction  in  form,3  and  when 
it  became  impracticable  to  make  the  distinction  it  be- 
came obsolete.  The  distinction  has  been  noticed  here 
more  fully  than  it  otherwise  would  have  been,  because 
an  impression  has  seemed  to  prevail  that  there  were 
at  one  time  two  different  actions  of  replevin  based 
upon  it,  in  one  of  which,  i.  e.,  in  the  detinet,  damages 
only  were  sought.4 

1  Fitzherbert,  Natura  Breviura,  69  L.  and  Note  (C). 

2  Stephen,  Pleading,  p.  43. 

3  Hammond,  Nisi  Prius,  pp.  460,  461. 

*  Chitty,  in  his  work  on  Pleading  (5th  Am.  Ed.,  p.  145),  refers 
to  the  action  as  of  two  sorts,  one  of  which,  that  in  the  detinet, 
for  the  value  of  the  goods  and  damages,  he  says  is  obsolete. 

In  Buller's  Nisi  Prius  (p.  52),  the  action  of  Replevin  in  the 
detinet  is  treated  as  though  it  were  an  action  commenced  with- 
out the  usual  proceedings  by  writ  or  plaint,  and  it  is  compared,  as 
to  its  advantages,  with  the  action  of  Trespass.  1  Saunders, 
347  b,  note  2,  is  to  the  same  effect. 

In  both  Chitty  and  the  note  in  1  Saunders'  Reports,  the  case 
of  Petre  v.  Duke,  Lutw.  1147,  is  cited  as  an  authority  upon  the 
distinction  between  the  supposed  two  forms  of  Replevin.  But 
the  case  is  no  authority  upon  the  point,  as  an  examination  will 
show. 

In  the  English  report  of  this  case  (Lutw.,  Nelson's  Ed.,  360), 
the  writ  is  spoken  of  as  being  in  the  detinet,  and  the  declaration 
or  count  as  in  the  detinuit.  It  is  said  that  an  exception  was 
taken  for  this  cause,  but  as  the  parties  by  agreement  amended 
their  pleadings,  the  point  was  not  passed  upon.  Then  follows 


52  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

§  TO.  No  case  of  replevin  can  be  found  in  the  re- 
ports where  the  object  was  not  the  specific  recovery  of 
the  chattels  and  which  was  not  commenced  by  the 
proceeding,  either  by  plaint  or  writ,  to  obtain  such 
recovery.1 

The  statement  of  Chief-Justice  Willes  in  the  case 
of  Pearson  v.  Roberts,  which  has  been  quoted  (ante, 
p.  47,  note  3),  has  been  construed  as  meaning  that 
there  was  an  action  of  Replevin  for  damages  only,  dif- 
ferent from  the  one  which  was  instituted  by  the  pro- 

the  statement,  "but  certainly  it  was  a  material  objection,  for  in 
a  Replevin  in  the  detinet  the  plaintiff  must  recover  the  value  of 
the  goods  and  his  damages  for  the  taking;  but  if  it  is  in  the 
detinuit,  that  is  in  the  preterperfect  tense,  it  implies  that  the 
plaintiff  hath  his  goods  again;  and  therefore  he  shall  only  recover 
for  the  wrongful  taking."  An  examination  of  the  original  report 
in  Lutw.  1147,  shows  that  the  word  writ  refers  to  the  recital  of 
the  writ'  contained  at  the  beginning  of  the  declaration,  and  that 
the  substance  of  the  objection  therefore  is  that  the  allegation  in 
the  body  of  the  declaration  is  inconsistent  with  the  recital,  the 
one  showing  that  the  goods  are  still  detained  by  the  defendant, 
and  the  other  that  they  have  been  restored  to  the  plaintiff  by  the 
sheriff.  In  this  form  the  objection  becomes  intelligible,  as  an 
objection  to  the  form  of  the  declaration  upon  the  theory  that  the 
court  could  not  say  what  damages  to  award  unless  it  was  clear 
whether  or  not  the  plaintiff  had  succeeded  in  getting  back  the 
property.  In  the  other  form  the  objection  is  not  intelligible,  but 
only  confusing,  as  it  is  no  objection  that  the  writ  or  plaint  is  in 
the  detinet  and  the  declaration  or  count  in  the  detinuit.  In  fact 
the  writ  or  plaint  is  always  and  rightly  in  the  detinet,  since  the 
goods  at  that  time  are  in  the  defendant's  possession,  and  the 
declaration  is  as  a  matter  of  fact  usually  in  the  detinuit.  This 
case  is  correctly  cited  in  Gilbert,  Replevin,  p.  167.  and  in  reality 
only  confirms  the  explanation  given  in  the  text  of  the  real  nature 
of  the  distinction  between  Replevin  in,  the  detinet  and  in  the 
detinuit. 

i  Fletcher  v.  Wilkins,  6  East,  283. 


ACTIONS  BASED  ON   NATURAL  EIGHTS.  53 

ceedings  for  specific  recovery.  Lord  Ellenborough,  in 
Fletcher  v.  Wilkins  (6  East,  283,  at  p.  286),  so  con- 
strues it,  for  he  says:  "And  Lord  Ch.  J.  Willes  there 
distinguished  between  a  replevin  by  plaint  or  man- 
datory writ  to  the  sheriff,  to  have  the  goods  again, 
and  replevin  by  action  to  recover  damages."  He  ex- 
presses the  opinion,  however,  that  the  statement  is 
not  correct,  and  that  there  is  no  such  action  of  replevin 
for  damages  only.  It  has  already  been  explained  that 
Willes  probably  had  in  mind  the  early  distinction  be- 
tween the  proceedings  for  the  recovery  of  the  chattels, 
which  were  preliminary  to  the  action  for  damages  for 
the  seizure,  and  the  action  itself. 

§  71.  Although  it  is  not  the  purpose  of  the  writer 
in  this  part  of  the  book  to  treat  of  pleadings  subsequent 
to  the  declaration,  yet  in  the  action  of  replevin  it  is 
proper  under  this  head  to  examine  the  first  pleading 
on  the  part  of  the  defendant  which  was  frequently  a 
declaration  in  fact  though  not  in  name. 

Wherever  the  defendant  claimed  the  right  to  the 
chattels,  he  set  up  his  right  and  prayed  for  their  re- 
turn, and  damages  for  their  detention,  in  a  pleading 
which  was  called  the  avowry  or  cognizance.1  This  was 
in  every  respect  like  a  declaration  and  was  so  treated.2 
As  will  be  seen  later,  the  plaintiff  pleaded  to  it  as 

1  Where  the  defendant  alleged  a  right  in  himself,  by  virtue  of 
which  he  seized  the  goods,  the  pleading  was  called  an  avowry; 
where  he  alleged   the   right   in  another,  by  whose   command   he 
acted  in  making  the  seizure,  the  pleading  was  called  a  cognizance 
(or  conusance,  Trevilian  v.  Pyne,  Salk.  107).     Comyns'  Digest, 
Title  Pleader,  3  K.  13,  14. 

2  Coke,  Littleton,  303  a   (7t)  ;  Bacon's  Abridgment,  Replevin  A. 


54:  PRINCIPLES  OF  COMMON-LAW   PLEADING. 

though,  he  were  a  defendant.  If  the  defendant  claimed 
no  right  in  the  chattels,  but  denied  the  seizure,  there 
was  a  regular  plea,  as  in  other  actions,  which  he  could 
put  in,  and  this  element  of  a  cross  action  by  avowry 
or  cognizance  did  not  enter  into  the  action. 

§  72.  The  origin  and  nature  of  replevin  has  been 
somewhat  fully  described.  It  has  been  seen  that  one 
of  the  peculiarities  of  it  was  the  manner  in  which  the 
plaintiff  recovered  his  goods  in  the  first  instance  be- 
fore or  at  the  very  commencement  of  the  action.  This 
peculiarity  survived  through  the  various  changes  which 
the  form  of  the  action  underwent,  and  has  always  been 
a  distinctive  feature  of  it.  As  a  result,  in  this  form 
of  action  there  was  no  waiting  for  relief  until  the 
determination  of  a  possible  lengthy  suit;  no  risk  of  a 
disposal  of  the  chattels  so  that  specific  recovery  would 
be  impossible.  Here  was  relief  at  the  start,  and  of  a 
very  substantial  kind.  It  is  not  to  be  wondered  at 
that  under  these  circumstances  the  lawyers  and  the 
courts  found  a  way  of  extending  the  action  to  all  cases 
of  wrongful  interference  with  personal  property  where 
specific  recovery  was  desired.  Just  as  the  action  of 
trover  was  extended  beyond  its  original  scope  as  a 
remedy  for  the  wrongful  conversion  of  goods  which  were 
found,  so  the  action  of  replevin  was  extended  beyond 
the  cases  of  wrongful  distress.  As  trover  became  a  uni- 
versal action  for  damages  for  any  wrongful  interference 
with  personal  property  accompanied  by  loss  of  posses- 
sion, so  replevin  became  the  universal  action  for  the 


ACTIONS  BASED  ON  NATURAL  EIGHTS.  55 

specific    recovery    of    personal    property    wrongfully 
taken.1 

§  73.  The  advantage  of  the  action  of  replevin 
over  that  of  detinue  is  obvious.  In  detinue  the  prop- 
erty could  be  recovered  only  after  the  determination, 
and  then  only  if  it  was  still  in  the  possession  of  the 
defendant;  while  in  replevin  the  property  could  be 
secured  at  the  very  outset. 

§  74.  Replevin  was  never  extended  at  common 
law  beyond  the  case  of  an  original  wrongful  taking  of 
the  goods  from  the  possession  of  the  plaintiff.  An  at- 
tempt was  made  to  broaden  the  form  of  action  so  as 
to  include  all  cases  where  detinue  or  trover  could  be 
brought.2  This  attempt  was  not  successful,  as  it  was 
thought  to  be  an  injustice  to  allow  this  summary 
method  of  regaining  possession  to  be  used  in  case  the 
defendant  had  acquired  possession  by  no  wrongful  act, 
but  simply  refused  to  acknowledge  the  right  claimed 
by  the  plaintiff.  The  object  of  the  action,  as  its  origin 
and  its  subsequent  use  show,  was  to  first  put  the  par- 
ties in  statu  quo,  and  then  determine  their  respective 
claims  to  the  chattels. 

1  Hammond's  Nisi  Prius,  451. 

2  Mennie  v.  Blake,  6  E.  &  B.  843. 

In  re  Wilsons,  1  Sch.  &  Lef.  320,  note  (a).  In  this  case  the 
nature  of  the  action  is  so  clearly  put  that  it  is  worth  while  to 
quote  the  language  of  Lord  Redesdale.  Replevin  "  is  merely 
meant  to  apply  to  this  case,  viz.:  where  A  takes  goods  wrong- 
fully from  B.  and  B  applies  to  have  them  redelivered  to  him, 
upon  giving  security,  until  it  shall  appear  whether  A  has  taken 
them  rightfully.  But  if  A  be  in  possession  of  goods  in  which  B 
claims  a  property,  this  is  not  the  writ  to  try  that  right." 


56  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

§  75  As  has  been  explained,  the  main  relief,  that 
of  specific  recovery,  is  secured  in  replevin,  not  by  the 
final  judgment,  except  so  far  as  it  may  be  a  confirma- 
tion of  the  restoration  of  the  goods  to  the  plaintiff, 
but  by  the  preliminary  proceedings.  In  fact  the  form 
of  relief  which  the  declaration  seeks  is  not  specific  re- 
covery,1 but  damages  for  the  wrongful  taking  and  de- 
tention of  the  chattels. 

§  76.  To  show  a  good  cause  of  action  in  replevin 
the  declaration  should  contain : 

(a).  A  statement  of  the  plaintiff's  right. 

To  show  the  plaintiff's  right,  all  that  need  be  alleged 
is  that  the  goods,  specific  recovery  of  which  is  sought, 
were  in  the  plaintiff's  possession  at  the  time  of  the 
wrongful  taking.  The  right  not  to  have  them  inter- 
fered with  being  a  natural  right,  follows  as  a  matter' 
of  course,  and  need  not  be  alleged. 

(6).  A  statement  of  the  violation  of  the  right  by 
the  defendant, —  i.  e.,  a  statement  of  the  wrongful  tak- 
ing and  detention. 

§  77  From  the  original  use  of  the  action  as  a 
remedy  for  wrongful  distress  exclusively,  it  happened 
that  it  was  necessary  to  allege  the  place  in  which  the 
chattels  were  taken,  for  unless  the  chattels  were  taken 
on  the  land  of  the  tenant,  it  was  not  a  distress,  and  he 
could  not  have  an  action  of  replevin,  but  must  resort 
to  some  other  action  for  relief.  This  was,  therefore,  at 

i  Except  possibly  in  the  early  history  of  the  action  when  the 
custom  of  declaring  in  the  detinct  was  in  vogue.  See  declaration 
set  forth  in  note  1  on  p.  50. 


ACTIONS  BASED  ON   NATURAL  RIGHTS.  57 

that  time,  a  matter  of  substance,  as  a  denial  of  the 
seizure  in  the  place  alleged,  if  proved,  was  a  good  de- 
fense to  the  action.  When  the  action  was  extended 
to  cover  other  wrongful  seizures  besides  wrongful  dis- 
tress, the  reason  for  the  requirement  of  an  allegation 
of  the  place  of  seizure  vanished.  The  allegation  was, 
however,  still  held  to  be  necessary,  though  only  as  a 
matter  of  form. 

§  78.  To  show  a  good  cause  of  action  on  the  part 
of  the  defendant  for  a  return  of  the  chattels  and  dam- 
ages, the  avowry  or  cognizance  should  contain : 

(a).  A  statement  of  the  right  upon  which  the  de- 
fendant relies,  whether  it  be  in  himself  or  in  another 
by  whose  command  he  acted. 

It  will  be  observed  that,  as  the  chattels  which  are 
the  subject  of  the  action  were  admittedly  in  the  plain- 
tiff's possession  at  the  start,  and  the  defendant  claims 
them  under  a  distress;  or  to  use  a  term  which  will 
cover  all  cases  in  which  the  action,  as  extended,  was 
used, —  a  seizure, —  he  must  show  that  seizure  to  have 
been  legal.  For,  if  he  shows  the  seizure  to  have  been 
legal  his  subsequent  possession  was  lawful,  and  the 
chattels  were  his  property,  concerning  which  he  had 
the  natural  right  not  to  have  them  interfered  with  in 
any  way.  But  as  he  cannot  rely  on  possession  as  prima 
facie  proof  of  ownership  in  himself,  since,  as  said 
above,  possession  was  at  the  start  admittedly  in  the 
plaintiff,  he  must  allege  facts  which  will  show  a  right 
of  possession  either  in  himself  or  the  person  by  whose 


58  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

command  he  made  the  seizure.  If  it  is  a  case  of  dis- 
tress, then  he  must  set  forth  fully  the  facts  as  to  the 
tenancy,  rent  in  arrear,  chattels  being  upon  the  leased 
property,  and  seizure.  If  it  is  a  case  other  than  dis- 
tress, then  he  must  set  forth  other  facts, —  e.  g.,  abso- 
lute ownership  in  himself ,—  which  will  show  a  right 
of  immediate  possession  on  his  part  at  the  time  of  the 
seizure. 

(&).  In  theory,  if  the  avowry  or  cognizance  is  a 
declaration,  it  should  allege  the  wrongful  act  which 
is  a  violation  of  the  right  set  forth.  But  the  wrong- 
ful act,  theoretically  at  least,  is  the  taking  of  the  chat- 
tels away  from  the  defendant,  and  this  is  done  under 
process,  in  the  action  itself,  and  is  a  part  of  the  rec- 
ords of  the  case.  The  court  would  not  intentionally 
allow  its  processes  to  be  used  to  commit  a  wrongful 
act;  but,  until  the  determination  of  the  question  be- 
tween the  parties,  it  has  no  means  of  telling  who  has 
the  right  to  the  chattels,  and  deems  it  better  that  the 
parties  should  be  placed  in  statu  quo,  even  at  the  ex- 
pense of  a  possible  wrong,  inasmuch  as  it  can  and  does 
protect  the  defendant  against  any  such  possible  wrong 
by  requiring  the  plaintiff  to  give  security  in  the  man- 
ner already  described.  From  the  defendant's  point  of 
view,  whatever  the  actual  facts  may  be  as  to  the  justice 
of  restoring  the  chattels  to  the  plaintiff,  the  act  of 
restoration  is  a  violation  of  his  right  not  to  have  his 
property  interfered  with  —  hence  technically  a  wrong- 
ful act.  But  it  can  readily  be  seen  that  there  is  no 
necessity  of,  or  propriety  in,  formally  alleging  as  a 
wrong  an  act  which  has  been  committed  by  authority 
of  the  court  itself. 


ACTIONS   BASED  ON   NATURAL,   RIGHTS.  59 

§  79.  A  good  example  of  a  declaration  in  replevin 
is  found  in  the  case  of  Potter  v.  North,  1  Saunders' 
Rep.  346  g. 

"  Henry  North,  late  of  Mildenhall,  in  the  said 
County,  esquire,  was  summoned  to  answer  John  Potter 
ef  a  plea  wherefore  he  took  a  horse  called  a  nag,  of 
him  the  said  John,  and  unjustly  detained  him  against 
sureties  and  pledges,  etc.  And  whereupon  the  said 
John,  by  Edward  Coleman  his  attorney,  complains  that 
the  said  Henry,  on  the  18th  day  of  June,  in  the  19th 
year  of  the  reign  of  our  said  lord  Charles  the  Second, 
now  King  of  England,  at  Mildenhall  aforesaid,  in  a 
certain  place  there,  called  the  Fenn,  took  the  said  horse 
of  him  the  said  John,  and  unjustly  detained  him  against 
sureties  and  pledges,  until,  etc. ;  wherefore  he  the  said 
John  says  that  he  is  worse  and  has  damage  to  the  value 
of  40  Z,  and  therefore  he  brings  suit,  etc." 

SECTION  V. —  CASE. 

§  8O.  The  form  of  action  known  as  Case,  in  its 
comprehensive  form,  probably  had  its  origin  in  a  stat- 
ute l  which  was  enacted  in  the  time  of  Edward  the 
First  (1285  A.  D.),2  and  in  which  it  was  provided: 

"And  whensoever  from  henceforth  it  shall  fortune 
in  the  Chancery  that  in  one  Case  a  Writ  is  found  and 
in  like  Case  falling  under  like  Law  and  requiring  like 
Remedy,  is  found  none,  the  Clerks  of  the  Chancery 

1  Statute  of  Westminster,  2,  13  Edw.  I.,  c.  24. 

2  4  Beeves'  History  of  English  Law,  430 ;    2  Blackstone  Com. 
51 ;  3  Wodd.  168. 


60  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

shall  agree  in  making  the  Writ;  or  the  Plaintiffs  may 
adjourn  it  until  the  next  Parliament,  and  let  the  Cases 
be  written  in  which  they  cannot  agree,  and  let  them 
refer  themselves  until  the  next  Parliament,  by  Con- 
sent of  men  learned  in  the  Law,  a  Writ  shall  be  made, 
lest  it  might  happen  after  that  the  Court  should  long 
time  fail  to  minister  Justice  unto  Complainants." 

The  intent  of  the  statute  was  to  allow  the  statement 
of  any  cause  of  action,  for  which  there  was  no  existing 
form,  according  to  the  facts  in  the  particular  case,  thus 
furnishing  a  means  for  recovery  in  all  cases  where  there 
was  a  wrong,  but  no  established  form  or  writ  in  which 
to  sue. 

§  81.  Undoubtedly  before  this  statute  actions  were 
allowed  which  were  of  the  nature  afterward  known  as 
Actions  upon  the  Case.1  Several  actions  of  this  sort 
are  found  among  the  Select  Civil  Pleas  published  by 
the  Selden  Society,2  and  show  conclusively  that  the 

1  Kinneyside  v.  Thornton,  2  Blackstone  Rep.  1113;  Brotherton 
v.  Wood,  3  B.  &  B.  62,  63. 

2  Selden    Society    Publications,    Vol.    III.     Select    Civil    Pleas, 
Cases  7,  84,  86,  106. 

Case  7  (1200  A.D.)  is  an  example  of  boldness  in  framing  new 
writs  hardly  to  be  expected  on  the  part  of  the  courts  at  that 
time.  The  case  is1  really  one  of  boycotting,  and  is  perhaps  the 
earliest  of  which  we  have  any  record. 

Case  106  is  of  the  same  nature,  and  is  interesting  enough  to  be 
citod  in  fu'l.  It  is  as  follows: 

"  Northhampton  —  Henry  Cumin,  put  in  the  place  of  Gerard  de 
Malquincy  (a  curious  practice  which  prevailed  at  that  time  of 
allowing  a  plaintiff  or  defendant  to  substitute  some  one  else  in 
his  place),  who  was  summoned  to  show  why  he  [Gerard]  had 
hindered  William  Lupus  from  tilling  his  land,  which  he  [Wil- 
liam] deraigned  (proved)  by  the  assize  (action  to  recover  posses- 


ACTIONS  BASED  ON  NATURAL  RIGHTS.  61 

principle  of  framing  new  writs  for  new  cases  which, 
through  the  statute  cited,  subsequently  produced  the 
comprehensive  action  of  case,  was  not  unknown  to  the 
common  law. 

§  82.  The  tendency  toward  crystallization  into  set 
forms  was  strong  enough  to  evolve  two  new  and  dis- 
tinct forms  from  the  general  class,  and,  as  we  have 
seen,1  it  was  not  long  before  the  actions  of  Assumpsit 
and  Trover  were  recognized  as  separate  from  Case. 

There  was,  however,  a  large  general  class  of  actions 
left,  actions  of  so  varied  a  character  as  to  the  facts 
upon  which  they  were  based,  that  they  could  not  well 
be  brought  within  any  one  or  more  forms.  These  are 
the  actions  which  have,  since  the  branching  off  of 
Assumpsit  and  Trover,  constituted  the  class  of  actions 
known  as  Case. 

§  83.  Without  attempting  to  specify  the  numerous 
instances  where  the  action  of  case  is  applicable,  it  may 
be  said  that  it  includes  all  actions  for  damages  for 

sion  of  land)  against  the  said  Gerard,  comes  and  concedes  that 
William  may  till  his  land  on  account  of  the  ejectment  of  said 
Gerard,  and  William  remits  to  him  the  damages  which  he  would 
have  recovered  hy  the  [verdict  of  the]  jury." 

Case  86,  Paxton  v.  Male,  is  another  good  example  of  an  action 
on  the  case.  It  seems  to  combine  the  element  which  was  after- 
ward brought  under  the  action  of  conversion  with  that  which  be- 
longed strictly  to  case.  The  complaint  was  that  the  defendant 
"unjustly  took  his  (plaintiff's)  oxen  and  sold  them  at  Waltham 
Fair,  which  oxen  were  worth  five  marks,  so  he  says,  and  besides 
had  troubled  him  in  other  ways,  on  account  of  which  his  land 
was  untilled,"  to  his  damage  of  20  marks." 

i  Ante,  pp.  23,  38. 


62  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

wrongful  acts  which  do  not  fall  within  any  of  the  other 
classes  of  actions,  and  that  the  wrongful  acts  are  usually 
indirect  or  somewhat  remote  from  the  injuries  resulting 
therefrom.1  It  is  to  be  noted,  too,  that  the  wrongful 
acts  are  always  violations  of  natural  rights,  and  never 
of  rights  which  arise  from  contract  or  other  special 
relations. 

§  84.  As  in  the  action  of  trespass,  so  in  that  of 
case,  the  injury  for  which  redress  is  sought  may  be 
either  to  the  person  or  to  the  property  of  the  plaintiff. 

If  the  injury  is  to  the  person,  then  the  declaration 
to  show  a  good  cause  of  action  need  contain  only  — 

A  statement  of  the  wrongful  act  on  the  part  of  the 
defendant. 

The  right  which  is  violated  by  such  wrongful  act 
being  an  absolute  or  natural  right,  need  not  be  stated. 
The  same  reasoning  applies  here  as  in  '  Trespass.  In 
alleging  the  wrongful  act,  however,  it  may  be  necesary 
to  state  somewhat  fully  the  circumstances,  in  order  to 
connect  the  act  with  the  injury,  as  its  cause.  There 
is  a  certain  class  of  cases  where  the  defendant's  act 
will  be  wrongful  only  if  the  plaintiff  is  in  a  proper 
legal  position  at  the  time  of  the  act.  In  such  cases 
it  is  necessary  to  allege  facts  showing  the  position  of 
the  plaintiff  to  be  a  proper  one.  Many  cases  of  inju- 

i  The  familiar  example  of  the  log  thrown  into  the  highway 
illustrates  as  well  as  any  this  characteristic  of  the  action  on  the 
case.  If  the  log  hits  and  injures  some  one  when  it  is  thrown, 
trespass  is  the  proper  form  of  action  to  adopt.  If  some  one 
coming  along  the  road  stumbles  over  it  and  is  injured,  the  proper 
form  of  action  is  Case. 


ACTIONS  BASED  ON  NATURAL  EIGHTS.  63 

ries  resulting  from  negligence  are  of  this  character. 
The  plaintiff  may  be  in  a  building,  upon  land,  in  an 
elevator  or  upon  a  train,  or  in  any  place  where  he  has 
no  right  to  be;  if  he  suffers  injury  because  the  build- 
ing is  not  safe,  because  of  an  uncovered  pit  upon  the 
land,  because  the  elevator  is  not  guarded,  or  because 
of  an  accident  to  the  train,  he  himself  is  to  blame;  he 
has,  so  to  speak,  violated  his  own  right  not  to  have  his 
person  injured.  Therefore,  the  fact  that  the  plaintiff  is 
rightfully  in  the  place  where  he  suffers  the  injury  is 
an  element  to  show  the  act  of  the  defendant  to  be  a 
wrongful  act  as  respects  the  plaintiff,  and  must,  of 
course,  be  alleged  in  the  declaration. 

§  85.  If  the  injury  complained  of  is  to  the  plain- 
tiffs' property,  the  declaration,  to  show  a  good  cause  of 
action,  should  contain : 

(a).  A  statement  of  such  facts  as  will  show  that  the 
plaintiff  has  some  interest  in  the  property,  which  may 
be  the  subject  of  injury.  The  word  property  here  is 
used  in  the  broad  sense  as  including  both  chattels,  real 
estate,  choses  in  action,  and  anything  which  is  of  value, 
or  from  which  plaintiff  rightfully  enjoys  a  benefit. 

When  the  plaintiff's  interest  is  once  shown,  his  right 
not  to  have  it  injured  is,  of  course,  plain,  and  requires 
no  formal  statement. 

(&).  A  statement  of  the  wrongful  act  on  the  part  of 
the  defendant. 


64  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

SECTION  VI. —  EJECTMENT. 

§  86.  The  form  of  action  known  as  Ejectment  is  a 
good  illustration  of  the  length  to  which  the  courts  some- 
times went  in  adapting  established  forms  to  new  uses.1 

The  action  was,  in  the  beginning,  an  action  of  tres- 
pass brought  by  a  person  in  possession  of  land  under 
a  lease  for  years,  against  one  who  entered  upon  the 
land  and  ejected  him.  It  was  known  as  the  writ  of 
ejectione  firmce.2  The  object  was  simply  the  recovery 
of  damages.  This  relief,  however,  was  inadequate, 
especially  where  the  tenant  had  a  long  term,  and  the 
practice  grew  up  of  applying  to  a  court  of  equity  for 
relief  —  against  the  lessor  for  specific  performance, 
against  a  stranger  for  an  injunction  restraining  him 
from  interfering  with  the  tenant's  possession.  This 
carried  a  great  deal  of  business  into  the  equity  courts 
from  the  courts  of  common  law,  and  resulted  in  the 
latter  adding  to  the  relief  by  way  of  damages,  given 
in  the  action  of  ejectione  firmce,  relief  by  .way  of  spe- 
cific recovery.3  Such  relief  was,  however,  never  prayed 

1  In1  3  Blackstone  Com.,  p.  200  et  seq.,  will  be  found  the  his- 
tory, in  detail,  of  the  action. 

2  The  earliest  recorded  instance  of  the  bringing  of  an  action  of 
this  kind  is  said  to  be  that  ia  Year  Book  Trin.  44  Edw.  III.,  22, 
26.     Prior   to  this  time  there  appears  to  have   been   an   action 
known  as  quare  ejecit,  in  which  the  lessee  could  recover  the  pos- 
session of  his  land  and  damages  for  the  ouster,  but  only  against 
his  lessor  or  some  one  claiming  under  him.     No  remedy  existed 
for  the  tenant  against  a  stranger  until  the  invention  of  the  writ 
of  ejectione  firmce.     The  distinction  between  the  two  actions  is 
stated  in  Year  Book  21  Edw.  IV.,  10,  30. 

s  Gilbert,  Ejectment,  pp.  3,  4.  Gilbert  fixes  this  innovation  in 
the  reign  of  Edward  IV.  ( 1460) .  Adams  fixes  the  time  as  be- 
tween 1455  and  1499.  Adams,  Ejectment,  p.  9. 


ACTIONS  BASED  ON  NATURAL  EIGHTS.  65 

for  in  the  declaration,   and  in  form  the  action  still 
remained  an  action  of  trespass  for  damages. 

§  87.  The  trespass  complained  of  was  the  ejection 
of  the  plaintiff  from  the  possession  of  the  premises. 
If  the  plaintiff  had  been  on  the  premises  as  a  mere 
intruder  and  had  no  interest  in  the  premises  which 
entitled  him  to  possession,  and,  on  the  contrary,  the 
defendant  entered,  ousted  the  plaintiff,  and  took  pos- 
session himself,  claiming  to  be  entitled  thereto,  his 
act  was  not  a  wrongful  one;  at  least  not  wrongful  as 
far  as  the  plaintiff  was  concerned,  for  it  was  no  viola- 
tion of  any  right  of  the  plaintiff's;  not  of  his  right  to 
the  undisturbed  enjoyment  of  his  property,  because 
it  was  not  his;  not  of  his  right  not  to  have  his  person 
interfered  with,  because  he  was  wrongfully  on  an- 
other's land,  and  his  right  in  that  respect  was  subject 
to  the  right  of  the  defendant  to  oust  him  with  all  neces- 
sary force.  It  resulted,  therefore,  that  the  plaintiff  in 
the  action  was  bound  to  allege  and  prove  his  right  to  the 
possession  of  the  land,  or  his  title,  as  it  is  generally 
called,  in  order  to  show  that  the  defendant's  act  of 
ousting  him  was  wrongful. 

§  88.  As  the  action  was  always  brought  by  a  les- 
see for  years,  the  elements  of  his  title  consisted  of 
a  good  title  in  his  lessor,  a  lease  to  himself,  and  an 
entry  under  the  lease.  One  would  have  supposed 
that  under  these  circumstances  the  action  was  of  a 
special  nature,  and  not  at  all  applicable  to  the  case 
of  a  person  who  had  never  been  in  possession  as  a 
lessee  or  otherwise,  but  who  wished  to  have  his  title 
5 


66  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

to  land  in  the  possession  of  another  determined.  Yet 
such  were  the  resources  of  the  lawyers  that  they  found 
a  way  to  utilize  the  action  as  a  general  means  for  the 
trial  of  title.  The  manner  adopted  was  to  have  A,  the 
claimant  of  the  land,  make  a  formal  entry  upon  it  (in 
the  absence,  or  at  all  events  without  the  knowledge,  of 
the  person  really  in  possession),  and  execute  a  lease  to 

B,  some  friend  who  accompanied  him.     B  remained 
upon  the  land  until  X,  the  person  actually  in  possession, 
returned  or  discovered  him,  and  then  considered  himself 
ejected.     An   action  was   then  brought   in   B's   name 
against  X.     B's  right  depended  upon  the  title  of  A, 
his  landlord,  and  A's  title  to  the  land  was  thus  deter- 
mined.    As  B  was  a  friend  to  A,  if  he  succeeded,  A 
had  no  difficulty  in  getting  the  possession. 

§  89.  The  next  step  in  the  development  of  the 
action  was  to  procure  C,  another  friend  of  A's,  to 
casually  happen  upon  the  land  shortly  after  the  mak- 
ing of  the  lease  and  eject  B,  instead  of  waiting  for 
X  to  eject  him.  B  then  brought  the  action  against 

C,  and  if  X  knew  nothing  about  the  proceedings,  -or 
they  were  intentionally  concealed  from  him,  he  would 
be  ousted  from  the  premises  under  the  judgment  re- 
storing them  to  B,  without  any  chance  to  defend  his 
right  to  them.1     Therefore  the  rule  was  adopted,  which 
was  made  use  of  afterward  so  effectively  by  Rolle,  re- 
quiring C,  the  casual  ejector,  to  notify  X,  the  person  in 
actual  possession  of  the  land,  that  an  action  had  been 
brought  against  him  for  ejecting  B  from  the  land,  and 

i  Adamfe,  Ejectment,  pp.  12,  13. 


ACTIONS  BASED  ON  NATURAL  EIGHTS.  67 

that  as  he  (C)  had  no  title  he  did  not  propose  to  defend 
it.1  Upon  this  X  could  apply  to  the  court  and  be  made 
defendant,  and  the  action  would  proceed  between  B 
and  X. 

§  90.  Here  the  inventive  genius  of  Rolle  saw  a 
chance  to  simplify  things.  Here  was  a  chance  to  im- 
pose conditions  upon  X,  who  was  an  applicant  to  the 
court  for  a  favor,  to  wit,  to  be  allowed  to  come  in  and 
defend  the  action.  X  was,  therefore,  compelled  to 
stipulate  to  admit  on  the  trial  the  fact  of  the  making 
of  the  lease  from  A  to  B,  the  entry  and  subsequent 
possession  by  B,  and  the  ouster  of  B  by  C.2  There  was 
nothing  left  then  to  try  but  the  title  of  B's  lessor  A. 
The  lease,  entry,  and  ouster  had  never  been  more  than 
a  hollow  form;  now  as  a  result  of  this  rule,  they  be- 
came a  fiction  pure  and  simple.  Even  the  form  was 
no  longer  observed,  and  it  was  customary  to  allege  the 
lease  to  John  Doe,  entry  by  him  and  ouster  by  Richard 
Roe,  fictitious  names  merely  used  for  the  purposes  of 
the  suit.  In  this  form  the  action  of  ejectment  has 
remained  to  the  present  time,  wherever  the  common- 
law  form  prevails. 

§  91.  As  has  been  said,  the  theory  of  the  action  is 
that  of  trespass  3  for  forcibly  ejecting  plaintiff  from 

1  For  form  of  notice,  see  Gilbert,  Ejectment,  191. 

2  Gilbert,  Ejectment,  p.  8. 

a  The  action  of  ejectment  is  always  treated  as  a  mixed  action, 
for  the  reason  that  the  plaintiff  recovers  both  possession  and 
damages,  though  Stephen  doubts  the  propriety  in  so  calling  it, 
as  the  declaration  in  form  te  merely  for  damages.  Stephen, 
Pleading:  Appendix,  p.  vii. 


68  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

his  land.  The  declaration  conformed  to  this  theory. 
To  show  a  good  cause  of  action  in  ejectment  the 
declaration  should  contain: 

(a).  A  statement  of  the  plaintiff's  rights.  The  ac- 
tion is  really  brought  for  a  violation  of  both  the  plain- 
tiff's right  not  to  have  his  person  interfered  with,  and 
the  right  to  the  undisturbed  enjoyment  of  his  property. 
The  former  needs  no  statement;  the  latter,  however, 
will  not  appear  to  attach  to  the  property  which  is  the 
subject  of  the  suit,  until  an  allegation  is  made  of  such 
facts  as  will  show  that  the  property  belonged  to  the 
plaintiff.  These  facts,  since  ejectment  is  always 
brought  nominally  by  a  lessee,  are  the  title  in  the  lessor 
(impliedly  alleged  by  the  allegation  of  the  lease),  the 
lease,  and  the  entry  and  subsequent  possession. 

(&).  A  statement  of  the  wrongful  act  on  the  part  of 
the  defendant. 

The  wrongful  act  is  the  ouster,  and  the  declaration 
follows  out  the  theory  of  the  action  by  alleging  it  and 
praying  damages  therefor.  Originally  the  damages 
were  substantial  in  amount,  but  when  the  fiction  which 
has  been  described  was  adopted,  and  the  real  defendant 
though  not  the  nominal  one  was  compelled  to  admit  the 
ouster  as  a  condition  of  being  allowed  to  come  in  and 
defend  the  action,  it  was  not  deemed  fair  to  give  any 
substantial  damages  against  him,  and  nominal  damages 
only  were  allowed. 

The  plaintiff,  if  successful,  could  subsequently  re- 
cover his  damages  for  loss  of  the  profits  of  the  land 
during  the  defendant's  wrongful  occupation  by  another 
action  known  as  an  action  of  trespass  for  mesne  profits. 


PART  II. 

PLEADINGS  SUBSEQUENT  TO  THE  DECLARATION. 


CHAPTER  I. 

DEMURRERS. 

§  92.  In  an  action  at  law  the  pleadings  subsequent 
to  the  declaration  seldom  extended  beyond  the  fourth 
stage.  They  .were  known  respectively  as  the  Plea,,  the 
Replication,  the  Rejoinder  and  the  Sur-re joinder. 
There  were  pleadings  subsequent  to  the  sur-rejoinder ;  * 
but  it  seldom,  if  ever,  became  necessary  to  use  them, 
and  they  need  not  be  noticed  here.  In  addition  to 
these  four  forms  of  pleadings,  there  was  a  method  by 
which  either  party  could  answer  the  other's  pleading 
at  any  stage,  known  as  the  Demurrer.  This  was  an 
entirely  different  thing  from  any  one  of  the  pleadings 
above  named,  but  in  the  general  sense  of  the  word 
pleadings  may  be  classed  as  a  pleading.  The  Demurrer 
will  be  treated  of  in  this  chapter. 

§  93.  When  the  plaintiff  had  set  forth  his  cause  of 
action  in  his  declaration,  in  a  manner  which  he  deemed 
sufficient  to  entitle  him  to  the  relief  sought,  it  was  the 
defendant's  turn  to  make  some  statement  to  the  court 

1  The  succeeding  two  are  called  the  Rebutter  and  Surrebutter. 
Euer,  Doctrina  Placitandi,  1667,  p.  1,  Preface. 

69 


70  PKINCIPLES  OF  COMMON-LAW  PLEADING. 

of  his  position  with  respect  to  the  wrongful  act  charged 
against  him.  Two  general  methods  of  answering  the 
declaration  were  open  to  him  —  the  first,  by  way  of  a 
demurrer;  the  second,  by  way  of  a  plea. 

§  94.  These  two  methods  were  entirely  unlike  in 
their  nature  and  effect. 

The  demurrer  was  a  pleading  which  could  be  used 
by  either  party  at  any  stage  of  the  pleadings,  provided 
the  other  had  not  already  used  it,  and  provided  issue 
in  fact  had  not  been  joined.1  The  defendant  could 
demur  to  the  plaintiff's  declaration.  If  he  did  not 
demur,  but  put  in  a  plea,  the  plaintiff  could  demur  to 
the  plea.  If  the  plaintiff  did  not  demur,  but  put  in 
a  replication,  the  defendant  could  demur  to  the  repli- 
cation; and  so  on  through  the  whole  list  of  successive 
pleadings.  But  when  a  demurrer  had  been  put  in  by 
either  party,  the  pleadings  were  at  an  end,  as  there  could 
be  no  demurrer  or  pleading  to  it.2 

§  95.  The  effect  of  the  demurrer  was  to  raise  a 
question  of  law  upon  the  pleadings  as  they  stood  prior 
to  the  demurrer,  which  it  was  the  province  of  the  judge 

1  Calverac  v.  Pinkero,  Prac.  Reg.  Com.  Pleas,  156. 

2  Haiton  v.  Jeffreys,  10  Modern  Rep.  280;  Ames'  Cases,  6. 

In  Euer,  System  of  Pleading  (1771),  p.  187,  we  find  the  state- 
ment: "Also  one  may  demur  to  a  demurrer  for  the  doubleness 
of  it;  but  otherwise  if  he  who  might  demur  does  not  demur  to 
it  but  joins  in  the  demurrer."  And  in  Regula  Placitandi,  137 
(2d  Ed.,  1694),  we  read:  "A  Demurrer  is  double  when  that  he 
that  doth  demur  doth  assign  in  his  demurrer  (for  cause  of  it) 
one  Error  in  Fact  and  another  Error  in  Law  to  be  in  the  Plea 
upon  which  he  demurs  which  ought  not  to  be  done  in  one 
Demurrer." 


DEMUBBEES.  71 

to  decide.     No  issue  of  fact  was  raised,  and  the  delay 
and  expense  incident  to  a  jury  trial  were  avoided. 

§  96.  The  plea.,  on  the  other  hand,  was  a  pleading 
exclusively  adapted  to  the  use  of  a  defendant,  and  was 
never  used  by  the  plaintiff  except  in  the  case  of 
replevin,  reference  to  the  peculiar  nature  of  which 
has  already  been  made.1  The  effect  of  it  was  to  raise 
an  issue  of  fact  or  present  new  matters  of  fact  to  the 
court,  which,  unless  the  plaintiff  stopped  the  course 
of  the  action  by  a  demurrer,  had  to  be  determined 
upon  a  trial. 

§  97.  The  office  of  the  demurrer  was  to  test  the 
sufficiency  of  the  preceding  pleading  in  point  of  sub- 
stance and  form.  Whenever  either  party  detected  a 
defect  in  the  other's  pleading,  whether  because  (in  the 
case  of  the  declaration)  it  did  not  show  a  sufficient 
cause  of  action,  or  (in  the  case  of  the  plea)  an  adequate 
defense,  or  because  it  was  framed  in  an  informal  man- 
ner, an  opportunity  was  presented  to  raise  a  question 
of  law  for  the  court  to  determine.  The  means  adopted 
to  bring  the  question  before  the  court  was  the  demurrer. 
The  form  of  it  was  as  follows : 

In  the  —  -  (name  of  court). 

The  —  day  of ,  in  the  year  of 

our  Lord . 

Title     ]    And  the  said  defendant   (or  plaintiff),  by 

of        [•       ,  his  attorney,  says  that  the  declara- 

Action.  J        tion  (or  plea)  is  not  sufficient  in  law. 

i  Ante,  p.  53. 


72  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

The  effect  of  this  was  as  though  the  defendant  had 
said:  "Admitting  everything  the  plaintiff  has  alleged 
in  his  declaration  to  be  true,  the  facts  do  not  show  any 
cause  of  action  against  me,  or  he  has  alleged  them  in 
such  an  informal  manner  that  he  is  not  entitled  to  pro- 
ceed with  this  action  against  me." 

§  98.  When  either  party  had  put  in  a  demurrer, 
the  only  thing  for  the  other  to  do  was  to  put  in  a 
"  joinder  in  demurrer,"  as  it  was  called.  This  was  in 
the  following  form : 

In  the  -  -  (name  of  court). 

The  --  day  of  -    — ,  in  the  year  of 
our  Lord . 

T^'fl         "^ 

'   And  the  plaintiff  says  that  the  declaration 
of        > 

.     .  .is  sufficient  in  Jaw. 

Action.  J 

The  question  as  to  the  sufficiency  of  the  pleading 
demurred  to  was  thus  presented  to  the  court  for  a 
determination. 

§  99.  Originally,  there  was  but  one  form  of  de- 
murrer. The  effect  of  it  was  to  bring  up  all  questions 
as  to  the  sufficiency  of  the  pleading  both  in  form  and 
substance.  The  rule  was  a  harsh  one,  however,  as  a 
party  was  frequently  thrown  out  of  court  upon  some 
technical  defect  in  his  pleading,  which,  as  he  had  no 
notice  of  the  ground  of  the  demurrer,  he  was  not  pre- 
pared to  meet.  It  was  therefore  provided  by  statute,1 

127  Eliz.,  Ch.  V.,  §  1    (1585). 


DEMURRERS.  73 

"  That  from  henceforth  (1585),  after  demurrer  joined 
and  entered  in  any  action  or  suit  in  any  court  of  record 
within  this  realm,  the  judges  shall  proceed  and  give 
judgment  according  as  the  very  right  of  the  cause  and 
matter  in  law  shall  appear  unto  them,  without  regard- 
ing any  imperfection,  defect,  or  want  of  form  in 
any  ....  pleading,  ....  except  those  only  which 
the  party  demurring  shall  specially  and  particularly 
set  down  and  express,  together  with  his  demurrer." 

§  100.  As  a  result  of  this  statute  the  special  de- 
murrer came  into  existence.  It  was  the  same  as  the 
old  form,  with  the  addition  at  the  end  of  a  statement 
of  such  defects  in  the  form  of  the  other's  pleadings  as 
the  party  demurring  proposed  to  object  to.  The  old 
form  was  still  used  where  the  party  demurring  desired 
to  call  in  question  the  substance  only  of  the  pleading, 
but  it  was  known  as  a  general  demurrer,  to  distinguish 
it  from  its  statutory  offshoot,  the  special  demurrer. 

§  101.  There  is  also  what  is  referred  to  in  some 
of  the  books  as  a  Demurrer  to  the  evidence.  With  this 
we  are  not  concerned  in  a  discussion  of  the  pleadings 
in  an  action  or  of  those  motions  which  have  to  do  with 
the  pleadings,  such  as  the  motions  in  arrest  of  judg- 
ment, non  obstante  veredicto,  etc.  The  demurrer  to 
the  evidence  is,  as  its  name  implies,  a  different  sort  of 
thing,  and  pertains  to  the  evidence  and  not  to  the  plead- 
ings. It  served  a  similar  purpose,  i.  e.,  it  called  in 
question  the  sufficiency  of  the  evidence  to  establish  the 
claim  of  the  plaintiff  or  defence  of  the  defendant  ad- 
mitting all  the  evidence  to  be  true.  It  was  the  per- 


74  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

cursor  of  the  more  modern  motion  to  dismiss  or  motion 
to  direct  a  verdict.  It  was  not  a  pleading,  nor  did  it 
relate  to  the  pleadings.1 

§  102.  At  common  law  the  judgment  given  upon 
the  demurrer  was  final,  i.  e.,  it  disposed  of  the  action. 
If  the  demurrer  was  sustained  and  the  pleading  de- 
murred to  held  insufficient,  there  was  no  opportunity 
for  the  defeated  party  to  amend  and  go  on  with  the 
action.  If,  on  the  contrary,  the  pleading  was  held 
good  and  the  demurrer  overruled,  the  party  demurring 
was  deemed  to  have  had  his  chance  in  court,  and  as  he 
had  chosen  to  rely  upon  some  defect  in  the  other's 
pleading  instead  of  answering  the  facts  set  forth,  final 
judgment  was  given  against  him.2  It  is  customary 
everywhere  at  the  present  time  for  the  courts  to  allow 
an  amendment  in  case  a  pleading  is  held  to  be  bad  on 
demurrer. 

§  1O3.  There  was  one  exception  to  the  rule  that 
final  judgment  would  be  given  on  a  demurrer.  It  was 
in  the  case  of  the  plea  in  abatement.  The  plea  in 
abatement  was,  as  will  be  seen  later,3  a  dilatory  plead- 
ing, i.  e.,  it  was  interposed  solely  for  purposes  of  delay. 
In  case  of  a  demurrer  to  a  plea  in  abatement  where 
the  demurrer  was  overruled,  the  judgment  given  in 
favor  of  the  defendant  did  not  decide  the  case  upon 
its  merits,  and  the  plaintiff  was  at  liberty  to  pursue 

lEuer,  System  of  Pleading  (1771),  p.  185. 

2  State  of  Maine  v.  Peck,  60  Me.  498;  Ames'  Cases  on  Plead- 
ing, 19. 

3  Post,  p.  95. 


DEMURRERS.  75 

the  action  or  bring  another  one  later.1  Therefore,  in 
case  the  demurrer  was  sustained,  the  court  did  not  give 
final  judgment  against  the  defendant.  In  such  case 
the  judgment  was  known  as  a  judgment  of  respondeat 
ouster  (let  him  answer  over).  Upon  such  judgment 
the  defendant  was  at  liberty  to  put  in  another  plea.2 

§  104.  In  the  general  sense  of  the  word  pleading, 
a  demurrer  may  be  said  to  be  a  pleading,  for  it  is  one 
of  the  means  used  by  the  parties  to  present  the  case 
to  the  court  for  determination. 

A  demurrer,  however,  is  not  a  plea.  It  has  been 
said  to  be  "  so  far  from  being  a  plea  that  it  is  an  excuse 
for  not  pleading."  3  A  statute,  therefore,  "which  per- 
mits the  defendant  to  put  in  several  distinct  pleas, 
does  not  authorize  a  party  to  put  in  a  demurrer  and 
a  plea  at  the  same  time.4  There  is  an  obscure  case 
in  Jenkins'  Century  Cases,  133  (A.  D.  1474), 5  in  which 
the  plaintiff  seems  to  have  put  in  both  a  replication 
and  a  demurrer  to  the  plea,  but  it  may  be  imperfectly 
reported,  and  may  not  have  been  the  exception  to  the 
general  rule  which  it  appears. 

T-Post,  p.  96. 

2Walden  v.  Holman,  2  Lord  Raymond,  1015;  Ames'  Cases,  5. 

sHaiton  v.  Jeffreys,  10  Modern  Rep.  280;  Ames'  Cases,  6.  It 
•will  be  observed  that  the  word  pleading  here  is  used  synonymously 
•with  putting  in  a  plea. 

*  Statute  of  4  Anne,  Ch.  XVI.  §  1,  construed  in  Haiton  v.  Jef- 
freys, supra-. 

s  J.  S.  of  Dale  v.  J.  S.  of  Vale,  Ames'  Cases,  1. 


76  PRINCIPLES  OF  COMMON-LAW  PLEADING. 


SECTION  I. —  GENERAL  DEMURRERS. 

§  105.  A  general  demurrer  before  the  statute  of 
27  Elizabeth,  as  has  already  been  observed,  tested  the 
sufficiency  of  a  pleading  both  in  substance  and  form. 
A  good  illustration  of  this  is  found  in  the  case  of  J.  S. 
of  Dale  v.  J.  S.  of  Vale,1  which  was  in  substance  as 
follows : 

A  v.  X.  Trespass  for  taking  the  plaintiff's  goods. 
X  pleads  that  he  (X)  was  possessed  of  the  goods  as 
his  own  until  A  took  them  and  gave  them  to  the  plain- 
tiff. A  demurs  generally  to  the  plea.  Judgment  for 
A.  The  plea  is  bad.  The  statement  that  A  took  the 
goods  and  gave  them  to  the  plaintiff  is  no  more  than 
saying  that  the  plaintiff  took  them,  since  A  is  in  fact 
the  plaintiff,  and  therefore  amounts  to  nothing.  The 
substance  of  the  plea,  therefore,  is  that  the  goods 
belonged  to  X,  the  defendant.  It  was  held  that  this 
amounted  to  a  general  denial  of  the  trespass,  and  hence 
the  form  of  the  plea  should  have  been  not  guilty. 

§  1O6.  Since  the  statute  referred  to,  the  office  of 
the  general  demurrer  has  been  limited  to  matters  of 
substance  entirely.  It  has  been  shown  in  the  preced- 
ing chapters  what  matters  constitute  the  substance  of 
the  declaration  in  the  various  forms  of  actions.  These 
matters  all  go  to  make  up  the  cause  of  action,  and  if 
the  cause  of  action  is  imperfectly  made  out  by  reason 
of  the  omission  of  any  one  or  more  of  them,  the  result 
will  be  that  the  declaration  will  be  held  to  be  bad  upon 
general  demurrer. 

1  Jenkins'  Century  Cases,  133 ;  Ames'  Cases,  1. 


DEMUKKERS.  77 

§  107.  As  it  is  with  the  declaration,  so  it  is  with 
the  subsequent  pleadings.  They  must  contain  matters 
which,  admitting  them  to  be  true,  constitute  a  valid 
answer  to  the  facts  set  up  in  the  preceding  pleading, 
otherwise  they  will  be  bad  upon  general  demurrer. 

§  108.  But  with  matters  of  form  the  general  de- 
murrer, after  the  statute,  had  nothing  to  do.  Matters 
which  constituted  evidence  of  the  falsity  of  the  facts 
set  up  in  the  preceding  pleading,  and  which  should 
have  properly  been  brought  in  as  evidence  under  a 
general  denial  of  the  wrongful  act  charged  in  the 
declaration,  or  a  specific  traverse  or  denial  of  some  fact 
stated  in  the  pleading,  might  be  set  out  in  full  and  no 
objection  could  be  made  to  it  under  a  general  demurrer. 

§  1O9.  There  was,  however,  one  exception  to  this 
rule,  and  that  was  in  the  case  of  a  plea  in  abatement. 
Even  after  the  statute  of  27  Elizabeth  which  resulted 
in  limiting  the  use  of  general  demurrers  to  matters  of 
substance,  the  courts  found  a  way  to  preserve  its  full 
scope  in  respect  to  the  plea  in  abatement.  It  may 
have  been  because  in  the  case  of  a  plea  in  abatement 
judgment  upon  the  demurrer  was  not  final,  and,  there- 
fore, an  injustice,  by  reason  of  the  party  not  being 
informed  of  the  defect  upon  which  his  adversary  in- 
tended to  rely,  was  less  likely  to  occur.  Whatever  may 
be  the  reason,  the  fact  remains  that  the  court  did  not 
apply  the  statute  in  the  case  of  a  demurrer  to  a  plea 
in  abatement.  The  case  of  Walden  v.  Holman  1  is  an 
illustration  in  point. 

i2  Ld.  Raymond,  1015;  Ames'  Cases,  5. 


78  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

A  v.  X.  The  plaintiff  describes  the  defendant  in 
his  declaration  by  the  name  of  John.  The  defendant 
pleads  in  abatement  that  he  was  baptized  by  the  name 
of  Benjamin,  and  then  referring  to  himself  adds  a 
denial,  "  That  the  same  John  was  every  known  by  the 
name  of  John."  The  plaintiff  demurs  generally. 
Plea  held  bad  in  form  because  of  the  addition  of  the 
unintelligible  denial.  Chief  Justice  Holt  says :  "  Mat- 
ters of  form  may  be  taken  advantage  of  on  a  general 
demurrer  when  the  plea  only  goes  in  abatement,  for 
the  statute  of  Elizabeth  only  means  that  matters  of 
form  in  plea  which  goes  to  the  action  shall  be  helped 
on  a  general  demurrer." 

§  110.  It  has  been  said  before  that  a  general  de- 
murrer is  an  admission  of  the  facts  stated  in  the  plead- 
ing demurred  to.  But  the  admission  is  solely  for  the 
purpose  of  determining  whether  the  facts  are  sufficient 
in  law,  i.  e.,  constitute  a  good  cause  of  action.  The 
admission  is  not  an  admission  for  any  other  purpose, 
and,  therefore,  cannot  be  used  as  evidence,  against  the 
party  demurring,  in  the  same  or  any  other  action  or 
proceeding.  The  nature  of  the  admission  is  shown  in 
the  case  of  Barber  v .  Vincent.1 

A  v.  X.  Action  of  Assumpsit  for  a  horse  sold  to  X. 
X  pleads  infancy.  A  replies  that  the  horse  was  a  neces- 
sary. X  demurs  generally.  It  was  urged  on  the 
defendant's  part  in  the  argument  that  an  infant  was 
only  chargeable  for  such  necessaries  as  meat,  drink, 
etc.  Demurrer  overruled,  and  replication  held  good 
on  the  ground  the  demurrer  admitted  the  horse  to  be  a 
necessary.  If  the  defendant  had  denied  that  the  horse 
was  a  necessary,  then  the  question  of  what  articles 

i  Freeman,  531 ;  Ames'  Cases,  3. 


DEMURKEBS.  T9 

came  within  the  term  necessaries  would  have  been 
material,  but  as  he  had  demurred  there  was  no  room 
for  any  argument  on  the  point. 

§  111.  The  admission  of  facts  by  a  demurrer  is 
subject  to  four  qualifications  which  are  generally 
recognized  in  the  cases. 

(1).  A  general  demurrer  does  not  admit  what  the 
court,  as  a  court,  knows  to  be  impossible  or  knows  to 
be  untrue.  This  is  for  the  reason  that  the  court  is 
assumed  to  be  an  intelligent  body,  conversant  with  the 
ordinary  laws  of  nature  and  with  all  facts  of  a  public 
nature. 

A  v.  X.  Action  of  Trespass  for  assault  and  battery. 
X  pleads  that  A  entered  his  land  and  broke  and  dis- 
placed stones  thereupon,  and  to  stop  him,  he,  X,  threw 
stones  at  him  gently,  and  they  fell  upon  him  gently. 
General  demurrer.  Plea  held  to  be  bad;  the  court 
knows  it  to  be  impossible  for  stones  to  fall  gently, 
although  admitted  by  the  demurrer.1 

A  v.  X.  Action  for  Account  for  £120  received  by 
X,  belonging  to  A.  Plea  that  X  never  received  the 
money  on  A's  account.  Upon  the  issue  being  tried 
by  the  jury  it  is  found  that  X  did  receive  the  money. 
In  the  old  action  of  account  the  practice  was  for  the 
defendant  to  plead  anew  before  the  auditory,  as  it 
was  called.  The  proceeding  before  the  auditory  or 
auditors  was  practically  a  second  stage  of  the  same 
action.  X,  in  his  plea  before  the  auditory,  again 
pleaded  that  he  did  not  receive  the  money  on  A's  ac- 
count. A  demurred  generally.  Plea  bad;  the  de- 
murrer does  not  confess  the  facts  stated  in  the  plea, 

1  Cole  v.  Maunder,  2  Rolles'  Abridgment,  548 ;  Ames'  Cases,  2. 


80  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

for  the  court  know  them  to  be  untrue,  the  jury  having 
found  them  such  by  its  verdict.1 

§  112.  A  distinction,  however,  is  made  between 
what  the  court  as  a  judicial  tribunal  have  knowledge 
of,  and  what  the  judge  or  judges  may  know  in  their 
private  capacity.  Although  the  judges,  in  their  ca- 
pacity as  private  citizens,  may  know  certain  facts  stated 
in  the  pleadings  to  be  untrue,  still  if  the  subject  is  one 
of  which  they  cannot  in  their  judicial  capacity  take 
notice,  on  a  demurrer  they  will  have  to  regard  them 
as  true. 

A  v.  X.  Action  of  Assumpsit  on  a  bill  of  exchange. 
A,  in  his  declaration,  bases  his  right  to  recover  upon 
an  alleged  special  custom  in  London,  which  custom, 
in  fact,  does  not  exist,  and  the  court  happens  to  know 
it.  X  demurs  to  the  declaration.  Declaration  held 
good  on  the  ground  that  the  custom  is  admitted  by  the 
demurrer.  To  understand  this  case,  it  should  be  noted 
that  a  court  cannot  take  judicial  notice  of  a  special  local 
custom;  if  it  had  been  a  general  custom  upon  which 
A  based  his  right  to  recovery,  the  court  could  have  taken 
judicial  notice  of  its  existence.2 

§  113.  (2).  A  general  demurrer  does  not  admit  a 
conclusion  of  law.  It  is  not  proper  to  allege  in  a 
pleading  a  conclusion  of  law.  It  is  for  the  court  to 
draw  the  necessary  conclusions  of  law  from  the  facts 
stated  in  the  pleading  and  proved  at  the  trial,  nor  can 

1  Tresham  v.  Ford,  Croke's  Eliz.  830 ;  Ames'  Cases,  2. 

2  Hodges  f.  Steward,  3  Salkeld,  68;  Ames'  Cases,  3. 


DEMURRERS.  81 

conclusions  of  law  be  denied  by  the  other  party.1  As 
it  is  improper,  or  at  least  superfluous,  to  allege  a  con- 
clusion of  law,  and  as  it  is  no  part  of  the  cause  of  action 
or  defense,  it  will  not  be  deemed  admitted  upon 
demurrer. 

A  v.  X.  Action  of  Assumpsit.  A  alleges  an  agree- 
ment between  X  and  Y,  to  submit  certain  matters 
between  them  relating  to  a  partnership  to  arbitrators, 
in  which  agreement  it  was  provided  that  X  should 
pay  such  debts  of  the  copartnership  as  the  arbitrators 
should  find  to  be  due,  but  A  shows  no  consideration 
between  himself  and  X.  He  alleges  an  award  by  the 
arbitrators  whereby  X  was  ordered  to  pay  him,  A, 
$125,  and  that  X  "  owes  him  $125,  the  sum  so  awarded 
by  said  arbitrators."  X  demurs.  Declaration  held 
bad,  as  it  shows  no  valid  contract  between  A  and  X. 
The  allegation  that  X  owes  A  the  money  is  a  con- 
clusion of  law,  and  is  not  admitted  by  the  demurrer.2 

Indictment  v.  X  as  X,  Esquire.  X  pleads  a  mis- 
nomer in  abatement ;  i.  e.,  that  he  has  been  indicted 
by  a  wrong  title;  that  he  is  a  lord.  Replication  that 
B  petitioned  the  House  of  Lords  to  be  tried  by  it  as  a 
lord,  and  that  the  petition  was  dismissed  according  to 
the  law  of  Parliament.  X  demurs.  Replication  held 
bad.  Whether  or  not  the  petition  was  dismissed  ac- 
cording to  the  law  of  Parliament  is  a  conclusion  of  law, 
and  it  is  not  admitted  by  the  demurrer.3 

§  114.  (3).  A  general  demurrer  does  not  admit  an 
immaterial  allegation.  If  either  party  in  his  pleadings 
inserts  allegations  which  are  immaterial, —  that  is,  are 

1  Post,  p.  127. 

2  Millard  v.  Baldwin,  3  Gray,  484 ;  Ames'  Cases,  10. 

3  Rex  v.  Knollys,  1  Ld.  Raymond,  10;  Aines'  Cases,  4. 

n 


82  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

not  essential  parts  of  the  cause  of  action,  or  the  defense, 
as  the  case  may  be, —  he  ca^i  have  no  benefit  from  such 
allegations,  nor  are  they  prejudicial  to  his  adversary. 
He  does  not  have  to  prove  them,  nor  can  his  adversary 
deny  them.  It  is  held,  therefore,  that  such  allegations 
will  not  be  admitted  by  a  demurrer.  The  question  can 
seldom  become  material,  as  there  are  few  instances 
where  it  would  make  any  difference  whether  or  not 
they  were  deemed  admitted. 

There  is  one  case,  however,  in  which  the  matter  has 
become  important,  and  that  is  where  the  immaterial 
allegation  is  of  some  matter  which  may  involve  the 
application  of  a  statute. 

A  v.  X.  Action  of  Trespass,  quare  clausum  fregit, 
for  $70  damages.  A  alleged  in  his  declaration  both 
possession  and  ownership  of  the  land.  X  demurred. 
The  declaration,  for  some  reason  which  is  not  mate- 
rial to  the  point  in  question,  was  held  insufficient  and 
judgment  given  for  X  for  $70.  A  appealed.  X  then 
moved  to  remand  the  case  to  the  lower  court,  under 
a  statute  providing  that  actions  were  not  appealable 
where  the  demand  for  damages  did  not  exceed  seventy 
dollars,  and  where  no  title  was  involved.  It  was  con- 
tended on  behalf  of  A  that  as  ownership  was  alleged  in 
the  declaration  and  was  admitted  by  the  demurrer,  title 
was  involved.  Motion  granted,  as  the  allegation  of 
ownership  was  immaterial  and  was  not  admitted  by 
the  demurrer.1 

§  115.  (4).  A  general  demurrer  is  not  such  an 
admission  of  the  facts  as  to  make  them  evidence  against 

i  Scovill  v.  Seeley,  14  Conn.  238;  Ames'  Cases,  9. 


DEMURRERS.  83 

the  party  demurring,  in  the  same  or  in  another  action 
or  proceeding. 

A  v.  X.  Action  of  Assumpsit  for  money  had  and 
received.  Plea,  that  X  had  used  the  money  for  a 
particular  purpose  authorized  by  A.  Formerly  X  had 
brought  an  action  against  A,  in  which  he  had  alleged 
the  fact  of  the  application  of  the  money  for  the  same 
purpose.  In  the  former  action  A  had  demurred. 
Upon  the  trial  of  the  present  action  on  behalf  of  X, 
it  was  proposed  to  read  the  proceedings  in  the  former 
action  as  amounting  to  an  admission  by  A  of  the  facts 
relating  to  the  application  of  the  moneys.  The  evidence 
was  excluded.  Held,  the  demurrer  did  not  admit  the 
facts  for  any  purpose  except  to  test  the  sufficiency  of 
the  pleading  demurred  to.1 

A  v.  X.  Action  brought  on  a  covenant  to  keep  a 
dam  at  a  certain  height.  X  pleads  two  pleas.  On  the 
first  plea  issue  is  joined,  and  upon  the  trial  found  for 
the  plaintiff  and  damages  given.  To  the  second  plea, 
which  claimed  a  prescriptive  right  to  overflow  the  lands 
of  A,  A  demurs.  X  moves  for  a  new  trial  on  the 
ground  that  the  facts  in  the  second  plea  having  been 
admitted  by  the  demurrer,  should  have  been  considered 
by  the  jury  in  giving  damages.  The  motion  was 
denied.2 

SECTION   II. —  SPECIAL   DEMURRERS. 

§  116.  It  has  already  been  seen  that  as  a  result 
of  the  statute  of  27  Elizabeth,  Ch.  V.,  S.  1,  a  new 
class  of  demurrers  grew  up  known  as  Special  Demur- 
rers, and  that  after  the  statute  formal  defects  in  the 

iTompkins  r.  Ashby,  Moody  &  Malkin,  32;  Ames'  Cases,  6. 
2  Stinson  v.  Gardiner,  33  Me.  94. 


84  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

pleadings  could  only  be  taken  advantage  of  by  this 
kind  of  a  demurrer.  There  is  a  statement  by  Holt,  to 
the  effect  that  there  were  special  demurrers  at  com- 
mon law,  though  the  kind  of  special  demurrer  to  which 
he  seems  to  refer  was  one  upon  which  "  the  party 
could  take  advantage  of  no  other  defect  in  the  plead- 
ing but  that  which  was  specially  assigned  for  cause 
of  his  demurring."  !  Since  at  common  law,  upon  a 
general  demurrer,  a  party  could  take  advantage  of  all 
defects  both  in  form  and  substance,  it  is  not  surprising 
that  no  cases  of  the  use  of  the  special  demurrer  are 
found. 

§  117.  The  following  cases  illustrate  the  nature 
of  a  special  demurrer  as  fixed  by  the  statute  referred 
to,  and  by  the  later  statute  of  4  Anrie,  Ch.  XVI.,  S. 
1,  in  respect  to  its  calling  in  question  only  those  mat- 
ters of  form  which  are  definitely  stated  in  the 
demurrer. 

A  v.  X.  Action  of  Trespass,  quare  clausum  fregit. 
The  declaration  alleges  a  trespass  upon  a  certain  day 
in  a  certain  close.  X  pleads  that  the  trespass  was  com- 
mitted at  another  day  in  another  close.  A  demurs 
generally.  The  plea  is  bad  in  form,  as  it  amounts  to 
a  denial  of  the  trespass  alleged,  and  should  have  been 
not  guilty,  but  in  order  to  take  advantage  of  this 
defect  A  should  have  specially  assigned  it  as  the  cause 
for  his  demurrer, —  i.  e.,  should  have  put  in  a  special 
demurrer.2 

A  v.  X.     Action  of  Keplevin.    X  in  his  cognizance  3 

1  Anonymous,  3  Salkeld,  122;  Ames'  Cases,  17. 

2  King  v.  Eotliam,  Freeman,  38;  Ames'  Cases,  16. 

3  For  explanation  of  this  pleading  in  Replevin,  see  ante,  p.  53. 


DEMURKEBS.  85 

says  that  he  seized  the  goods  for  rent  as  bailiff  of  I); 
that  the  rent  had  been  granted  to  one  M,  and,  on  his 
death,  descended  to  another  M,  "  as  his  cousin  and 
heir,  without  showing  how  his  cousin,"  and  then  traces 
it  by  grant  and  otherwise  to  D.  A  demurs  generally. 
The  question  was  whether  the  omission  to  show  how 
the  rent  descended  from  one  M  to  another  M  was  a 
matter  of  form,  which  could  only  be  taken  advantage 
of  by  special  demurrer,  or  a  matter  of  substance.  It 
was  held  that  the  cognizance  was  good,  as  the  omis- 
sion was  a  formal  defect  and  could  not  be  taken  ad- 
vantage of  on  a  general  demurrer.1 

§  118.  A  special  demurrer,  in  addition  to  calling  in 
question  such  matters  of  form  as  are  particularly 
stated,  has  also  all  of  the  advantages  of  a  general 
demurrer.2  It  is  held  that  "  every  special  demurrer 
includes  a  general  one." 

A  v.  X.  Action  of  Debt  011  a  bond.  X  pleads  full 
performance  of  the  condition  of  the  bond.  A  replies 
that  X  was  treasurer  of  the  State  for  a  certain  period, 
specifying  it,  and  on  certain  days  during  said  period 
X  as  treasurer  received  sums  of  money  belonging  to 
the  State  and  did  not  account  for  any  part  of  them. 
X  put  in  a  special  demurrer  to  the  replication.  The 
court  held  that  the  special  demurrer  included  a  gen- 
eral demurrer,  and  that  as  the  replication  was  good 
both  in  substance  and  form,  final  judgment  could  be 
entered  for  the  plaintiff,3  in  the  usual  way  as  upon  a 
general  demurrer. 

A  v.  X.  Action  of  Trespass,  quare  clausum  fregit. 
A  alleges  in  his  declaration  both  possession  and  own- 

i  Heard  v.  Baskerville,  Hobart,  232 ;  Ames'  Cases,  13. 

zRegula  Placitandi  (2d  Ed.,  1694),  137. 

s  State  of  Maine  v.  Peck,  60  Me.  498 ;  Ames'  Cases,  19. 


86  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

ership.  X  as  a  plea  puts  in  a  denial  of  the  ownership, 
which  is  good  in  form.  A  demurs,  specially  assign- 
ing as  a  cause  some  defect  in  form  which  does  not  in 
fact  exist.  Though  the  demurrer  would  be  overruled 
as  a  special  demurrer,  nevertheless  the  demurrer  is 
sustained  and  judgment  given  for  A.  This  is  because 
the  special  demurrer  includes  a  general  demurrer,  and 
the  plea  being  a  denial  of  an  immaterial  allegation, 
is  bad  in  substance. 

§  119.  The  special  demurrer  at  the  present  time 
plays  very  little  part  in  the  proceedings  in  an  action, 
as  it  has  almost  everywhere  been  superseded  by  some 
other  method  of  taking  exception  to  formal  defects 
in  a  pleading.  It  is  customary,  too,  at  the  present 
time  for  the  court  to  allow  either  party  to  amend  any 
informality  or  technical  defect  in  the  pleading. 

Statutory  enactments  provide  various  remedies  in 
case  of  pleadings  which  are  improperly  drawn  or  which 
in  any  formal  respect  are  objectionable.  The  most 
common  of  these  are  motions  which  may  be  made  by 
the  objecting  party  on  notice  to  his  adversary  —  such 
as  a  motion  to  strike  out  "  irrelevant,  redundant  or 
scandalous  matter ;  "  !  a  motion  to  require  a  pleading 
to  be  made  more  definite  and  certain ;  2  a  motion  to 
strike  out  a  defense  as  sham 3  and  the  like. 

1  N.  Y.  Code  of  Civil  Proc.,  §  545. 

2  Id.,  §  546. 

3  Id.,  §  538. 


DEMUEEEES.  87 

SECTION  III. —  EFFECT  OF  DEMUEBEK  IN  OPENING 
THE  RECOED. 

§  120.  There  was  a  peculiarity  about  the  demur- 
rer which  made  it  somewhat  dangerous  for  a  party  to 
use  unless  he  was  perfectly  sure  that  his  own  plead- 
ings were  properly  drawn.  This  peculiarity  was  the 
effect  which  a  demurrer  had  in  opening  the  whole 
record,  so  that  the  court  began  with  an  examination 
of  the  declaration  and  took  up  successively  eax;h.  plead- 
ing with  respect  to  its  sufficiency,  and  then  gave  judg- 
ment against  the  party  who  had  made  the  first  mistake 
without  regard  to  which  one  had  put  in  the  demurrer.1 

A  v.  X.  A  brings  an  action  of  Debt  on  a  bond  as 
temporary  administrator  of  L  during  the  minority  of 
the  executor  appointed  by  will,  and  alleges  that  such 
executor  is  not  yet  twenty-one.  X  pleads  a  plea  which 
is  insufficient  in  substance  (the  nature  of  the  plea  is 
not  shown).  A  demurs.  Judgment  is  given  for  the 
defendant,  although  his  plea  is  bad,  for  the  reason 
that  A's  declaration  is  also  bad,  and  the  demurrer 
opens  the  whole  record.  To  understand  why  the 
declaration  is  bad  in  substance,  it  is  necessary  to  know 
that  the  law,  at  the  time  of  this  case,  was  that  tempo- 
rary administration  during  minority  of  the  regular 
executor  ceased  when  the  executor  became  seventeen. 
The  plaintiff,  therefore,  by  alleging  that  the  executor 
was  under  twenty-one,  did  not  show  a  right  to  bring 
the  action.  He  should  have  alleged  that  the  executor 
was  under  seventeen.2 

i  This  principle  is  applicable  today  where  the  demurrer  is-  used 
in  systems  of  code  pleading.  Hasselbach  f.  Mount  Sinai  Hos- 
pital, 173  App.  Div.  (N.  Y.)  89. 

zPiggot's  Case,  5  Reports,  29  a;  Ames'  Cases,  22. 


88  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

A  v.  X.  The  action  was  in  Debt  on  a  bond,  the 
condition  of  which  was  the  payment  of  money  on  a 
certain  day.  X  pleads  payment  of  the  money  before 
the  day.  A  replies  that  X  did  not  pay  before  the 
day.  X  demurs.  Judgment  is  given  for  the  plain- 
tiff. The  first  pleading  which  is  insufficient  is  the 
plea,  and  although  the  replication  is  insufficient  also, 
the  judgment  must  be  against  the  defendant  on  ac- 
count of  his  bad  plea.  This  case  illustrates  the  tech- 
nicality of  the  old  law,  which  held  that  an  allegation 
of  the  payment  of  money  before  a  certain  day,  where 
the  condition  of  the  bond  was  payment  upon  such  day, 
was  not  an  allegation  of  performance  of  the  condition. 
If  X  had  pleaded  payment  on  the  day,  and  had  shown 
in  evidence  payment  before  the  day,  it  would  have 
been  held  sufficient  proof  of  the  allegation.1 

§  121.  Where  the  record  is  opened  by  a  demurrer, 
the  court  examines  the  pleading  only  for  defects  in 
substance.  As  defects  in  form  could  only  be  taken 
advantage  of  by  means  of  a  special  demurrer,  a  party 
who  did  not  demur  specially  to  the  pleading  of  his 
adversary  was  considered  to  have  waived  any  infor- 
malities in  the  pleading,  and  had  no  further  chance 
to  take  exception  to  such  defects. 

A  17.  X.  Action  of  Trespass,  quare  clausum  fregit. 
X  pleads  matters  which  amount  to  a  denial  of  A's 
possession,  and  which  should,  therefore,  have  been 
pleaded  under  a  specific  denial  of  the  possession.  A 
replies  by  denying  an  immaterial  allegation  in  the 
plea.  X  demurs  specially.  The  first  defect  is  on  the 
part  of  the  defendant  in  not  pleading  a  specific  denial 
of  the  possession,  but  this  is  only  a  formal  defect,  and, 

i  Anonymous,  2  Wilson,  150;  Ames'  Cases,  24. 


DEMURRERS.  89 

therefore,  cannot  be  noticed.  The  first  defect  in  sub- 
stance is  in  the  replication.  Judgment  is,  therefore, 
given  for  the  defendant. 

§  122.  It  has  been  said  that  a  demurrer  opens  the 
whole  record.  This  does  not  mean  the  whole  record 
of  the  case,  but  only  that  portion  which  the  demurrer 
terminates,  and  which,  in  reality,  constitutes  a  sepa- 
rate and  complete  record  by  itself. 

It  often  happens  that  there  are  several  records  in 
the  same  suit,  one  of  which  may  terminate  in  an  issue 
of  fact  to  be  tried  by  a  jury;  another  in  an  issue  of 
law  to  be  decided  by  the  court.  The  latter  is  the 
case  where  there  is  a  demurrer. 

To  give  a  specific  instance  of  this,  there  may,  for 
example,  be  two  pleas  to  a  declaration ;  1  to  one  of 
them  the  plaintiff  may  demur,  and  upon  the  other  he 
may  join  issue;  there  are,  then,  two  records  for  the 
court  to  determine  the  case  upon.  That  they  are  en- 
tirely separate  is  shown  by  the  fact  that  what  is  stated 
in  the  pleadings  of  one  record  cannot  be  introduced 
to  affect  judgment  on  the  other. 

A  v.  X.  X  sold  out  his  business  to  A  and  agreed 
not  to  carry  on  the  same  business  within  a  certain 
limit.  A  brings  an  action  of  Assumpsit  for  breach  of 
the  agreement  by  X  in  carrying  on  the  same  business 
within  the  prohibited  locality.  X  pleads  (1)  that  A 
did  not  perform  his  part  of  the  agreement,  but  in 
such  a  manner  as  to  make  the  plea  bad  in  substance; 

i  Although  at  common  law  the  defendant  could  put  in  but  one 
plea,  this  rule  was  subsequently  changed  by  statute.  See  ante, 
p.  75,  note  4. 


90  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

(2)  as  a  set-off  against  anything  A  might  recover, 
that  A  was  indebted  to  the  defendant  in  the  sum 
of  $500.  A  demurs  to  the  first  plea,  and  replies  to 
the  second  that  he  became  a  bankrupt  and  had  pro- 
cured his  discharge  from  his  debts.  Upon  the  argu- 
ment upon  the  demurrer,  X  claims  that  the  replica- 
tion of  bankruptcy  made  to  the  second  plea  shows 
that  A  had  no  right  to  bring  the  action,  but  that  it 
should  have  been  brought  by  his  assignee;  that  as  this 
appeared  from  the  record,  judgment  on  the  demurrer 
must  go  against  A.  It  was  held,  however,  that  the 
declaration,  plea  number  one,  and  the  demurrer  con- 
stituted a  separate  record  from  the  declaration,  plea 
number  two,  and  the  replication,  and  that  as  the  mat- 
ter of  bankruptcy  appeared  only  in  the  second  record, 
it  would  not  affect  the  questions  raised  on  demurrer. 
Littledale,  J.,  says:  "We  must  treat  the  count,  plea, 
and  replication,  and  the  count,  plea,  and  demurrer, 
as  distinct  records,  and  give  judgment  upon  each  with- 
out reference  to  the  other."  Judgment  was  given  for 
the  plaintiff  on  the  demurrer.1 

§  123.  It  is  to  be  observed,  however,  that  the  fact 
of  there  being  two  separate  records  will  not  prevent 
the  court  from  holding  the  declaration  to  be  bad,  if  it 
appears  upon  the  face  of  the  declaration  that  it  does 
not  state  a  sufficient  cause  of  action,  and  if  one  of  the 
records  terminates  in  a  demurrer  so  that  the  record  is 
opened.  This  is  so  even  though  the  other  record  start- 
ing with  the  same  declaration  may  have  terminated 
with  an  issue  of  fact  to  be  tried  by  the  jury. 

A  v.  X.  Action  of  Assumpsit  for  certain  instal- 
ments due  upon  stock  subscribed  for  by  X.  The  facts 

iDavies  v.  Penton,  6  B.  &  C.  216;  Ames'  Casee,  28. 


DEMUEEEES.  91 

as  alleged  in  the  declaration  were  insufficient  to  con- 
stitute a  cause  of  action.  X  pleads  (1)  non-assumpsit, 
upon  which  issue  is  joined;  (2)  that  there  is  no  such 
corporation  as  A.  To  the  second  plea  A  puts  in  a 
replication  setting  forth  the  act  incorporating  itself. 
X  demurred  to  the  replication.  Judgment  was  given 
for  X  upon  the  ground  that  the  declaration  was  bad 
in  substance.1 

§  124.  There  is  one  exception  to  the  rule  that  a 
demurrer  opens  the  whole  record.  This  is  in  the  case 
of  a  plea  in  abatement.  Upon  a  demurrer  to  this 
kind  of  plea  the  sufficiency  of  the  plea  alone  is  con- 
sidered. .  This  exception  may  have  resulted  from  the 
fact  that  the  defendant,  in  case  judgment  went  against 
him  upon  a  demurrer  to  his  plea  in  abatement,  had  a 
chance  to  answer  the  declaration  a  second  time  either 
by  way  of  plea  or  demurrer,  and  was,  therefore,  de- 
prived of  no  privilege  by  the  demurrer  being  confined 
to  his  plea. 

A  v.  X.  Action  upon  the  case  for  beer  and  wages. 
The  cause  of  action  was  insufficiently  set  forth.  X 
put  in  a  plea  in  abatement  which  was  insufficient  in 
substance.  A  demurred.  X  insisted  that  the  first 
fault  or  defect  was  in  A's  declaration,  and  that  judg- 
ment should  be  given  for  him  (X)  ;  but  it  was  held 
that  "  The  defendant  shall  not  take  advantage  of  mis- 
takes in  the  declaration  upon  a  plea  in  abatement; 
but  if  he  would  do  that  he  must  demur  to  the  decla- 
ration. Per  quod  a  respondeas  ouster  was  awarded."  2 

1  Auburn  &  Owasco  Canal  Co.  v.  Leitch,  4  Denio,  65 ;  Ames* 
Cases,  31. 

2  Hastrop  v.  Hastings,  1  Salkeld,  212 ;  Ames'  Cases,  24. 


92  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

§  125.  Although  a  demurrer  opens  up  the  whole 
record,  and  the  court  examines  all  of  the  pleadings 
with  a  view  to  giving  judgment  in  favor  of  the  party 
who  appears  upon  the  allegations  in  the  pleadings  to 
be  in  the  right,  yet  it  will  not  give  judgment  for  a 
plaintiff  upon  any  claim  or  cause  of  action  which  does 
not  appear  in  the  plaintiff's  declaration,  even  though 
it  may  appear  in  the  subsequent  pleading.  The  plain- 
tiff is  supposed  to  know  his  own  cause  of  action  and  to 
allege  that  upon  which  he  seeks  a  recovery. 

A  v.  X.  The  action  was  upon  a  covenant  to  abide 
by  an  award  and  not  to  hinder  its  being  made,  but  the 
breach  alleged  was  simply  non-performance  of  the 
award.  X  pleads  that  before  the  arbitrators  made 
the  award  he  revoked  their  authority  (which,  if  true, 
would  render  the  award  void).  A  demurs,  and  claims 
judgment  on  the  ground  that  X  admits  in  his  plea  a 
breach  of  the  covenant  not  to  hinder  the  award  being 
made.  Judgment  was  given  for  X  on  the  ground  that 
A  had  not  alleged  as  a  cause  of  action  the  breach  of 
the  covenant  not  to  hinder  the  award,  but  only  of  the 
covenant  to  abide  by  the  award,  and  the  plea  was  a 
good  defense  to  the  breach  alleged.1 

§  126.  There  is  another  seeming  exception  to  the 
rule  that  a  demurrer  opens  up  the  whole  record. 

The  plaintiff  might  by  a  failure  to  take  advantage 
of  a  defect  in  the  defendant's  pleadings  put  himself 
in  a  position  where  he  could  not  claim  the  benefits  of 
the  rule  that  a  demurrer  opens  the  whole  record.  This 
was  the  case  where  an  action  was  brought  against 
several  defendants  and  one  of  them  failed  to  appear. 

i  Marsh  v.  Bulteel,  5  B.  &  Aid.  507 ;  Ames'  Cases,  26. 


DEMUEBEBS.  93 

The  proper  course  for  the  plaintiff  in  such  a  contin- 
gency was  to  apply  for  judgment  against  the  party  in 
default,  and  proceed  with  the  action  against  those  who 
appeared  and  pleaded.  If  the  plaintiff  did  not  do  this 
he  was  said  to  have  made  a  discontinuance,  and  could 
not  demand  judgment  in  case  of  any  subsequent 
demurrer. 

A  v.  X,  Y,  and  Z.  Action  of  Assumpsit.  X  and 
Y  plead  a  debt  of  record  due  to  them  from  A  by  way 
of  set-off.  Z  does  not  appear.  A  replies,  no  such 
record,  but  fails  to  ask  judgment  by  default  against 
Z.  X  and  Y  demur.  A  insists  that  the  first  fault  is 
in  the  plea,  which  is  no  answer  to  his  demand  against 
the  three  defendants,  X,  Y,  and  Z.  Judgment,  how- 
ever, is  given  for  the  defendants  X  and  Y,  on  the 
ground  that  A,  having  made  a  discontinuance,  is  prac- 
tically out  of  court  and  cannot  demand  judgment.1 

i  Tippet  v.  May,  1  Bos.  &  P.  411;  Ames'  Cases,  25. 


94:  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

CHAPTER  II. 

DILATORY    PLEAS. 

§  127.  The  demurrer,  it  has  been  seen,  was  a 
method  by  which  the  defendant  could  avoid  putting 
in  an  answer  to  the  merits  of  the  cause  of  action  alleged 
against  him,  and  obtain  a  determination  of  the  suit 
solely  upon  the  plaintiff's  statement  of  the  case.  The 
real  facts  may  or  may  not  have  constituted  a  good  cause 
of  action,  and  the  defendant  may  or  may  not  have  had 
a  good  defense.  These  questions  were  immaterial.  If 
the  plaintiff  had  failed  to  make  his  cause  of  action 
appear  upon  the  face  of  his  declaration,  or  had  drawn 
such  declaration  in  an  informal  manner,  the  defendant, 
without  going  into  the  question  of  the  real  facts  of  the 
matter,  could,  by  general  or  special  demurrer,  defeat 
the  plaintiff's  suit.  But  it  was  only  for  a  fault  which 
appeared  upon  the  face  of  the  declaration  that  the 
defendant  could  demur.  If  there  were  other  mistakes 
which  the  plaintiff  had  made  in  the  bringing  of  his 
action,  or  in  his  declaration,  which  did  not  appear  upon 
the  face  of  the  declaration,  the  defendant  could  not 
take  advantage  of  them  by  a  demurrer. 

§  128.  There  was  a  method,  however,  by  which  he 
could  bring  them  to  the  attention  of  the  court,  namely, 
by  the  use  of  a  dilatory  plea. 

The  object  of  this  plea  was  to  put  a  stop  to  the  par- 
ticular action  brought,  either  temporarily  by  having  it 


DILATORY    PLEAS.  95 

adjourned  or  suspended  indefinitely,  or  permanently  by 
having  the  declaration  abated. 

The  effect  from  the  plaintiff's  standpoint  was,  in 
the  case  of  a  suspension  of  the  action,  that  he  could 
proceed  with  the  suit  at  some  future  time,  when  the 
reason  which  constituted  the  ground  of  the  dilatory  plea 
had  ceased  to  exist ;  in  the  case  of  the  abatement  of  the 
action,  that  he  could  commence  anew  in  the  same  court, 
or,  if  the  ground  of  the  plea  was  lack  of  jurisdiction, 
in  another  court  which  had  jurisdiction. 

§  129.  It  was  characteristic  of  the  dilatory  plea 
that  to  have  the  benefit  of  it  the  defendant  must  use  it 
at  once.  He  could  not  put  in  a  regular  plea  and  then, 
discovering  there  existed  ground  for  a  dilatory  plea, 
seek  to  take  advantage  of  it  at  a  later  stage  in  the  action. 
Where,  for  example,  a  plaintiff  in  his  declaration  de- 
scribed his  name  as  James,  and  on  the  trial  it  appeared 
his  name  was  Jacob,  it  was  held  that  defendant  was 
precluded  from  taking  advantage  of  the  misnomer  on 
a  motion  in  arrest  of  judgment.1 

§  130.  Dilatory  pleas  may  be  divided  into  three 
general  classes,  in  respect  to  the  effect  which  they  have 
upon  the  disposition  of  the  action:  (1).  Pleas  to  the 
jurisdiction  of  the  court.  (2).  Pleas  in  suspension  of 
the  action.  (3).  Pleas  in  abatement. 

§  131.  '(1).  The  plea  to  the  jurisdiction  of  the 
court  was  in  substance  a  statement  that  the  plaintiff 

lAldredge  v.  Wood,  Pract.  Reg.,  p.  7. 


96  PRINCIPLES  OF  COMMON-LAW  PLEADING. 

had  commenced  his  action  in  the  wrong  court,  either 
because  the  court  had  no  jurisdiction  of  the  subject- 
matter  of  the  action  or  of  the  parties  thereto,  and  that 
on  that  account  the  defendant  ought  not  to  be  com- 
pelled to  plead.  A  judgment  for  the  defendant  upon 
a  plea  to  the  jurisdiction  was  a  virtual  ending  of  the 
suit,  as  far  as  the  particular  court  in  which  it  was 
brought  was  concerned. 

§  132.  (2).  The  plea  in  suspension  was  a  plea 
which  showed  matter,  such  as  the  excommunication  or 
outlawry  of  the  plaintiff,  by  reason  of  which  he  was  not 
entitled  to  prosecute  the  action  at  the  time.  A  judg- 
ment for  the  defendant  upon  such  a  plea  amounted 
practically  to  an  adjournment  of  the  case  indefinitely. 
In  the  language  of  the  time,  it  was  that  he  "  go  quit 
without  day,"  but  the  action  was  not  abated,  and  upon 
an  ending  of  the  disability  by  pardon,  the  plaintiff 
could  proceed  with  the  action.1 

§  133.  (3).  The  term  plea  in  abatement  has  been 
quite  generally  used  as  synonymous  with  the  term 
dilatory  pica.2  This  use  of  the  term  is  inaccurate,  as 
there  is  a  very  substantial  difference  between  the  plea 
in  abatement  and  the  other  dilatory  pleas.  While  the 
plea  to  the  jurisdiction,  if  successful,  disposes  of  the 
case  entirely  as  far  as  the  particular  court  is  concerned, 
and  the  pica  in  suspension  merely  suspends  the  progress 
of  the  suit  temporarily,  the  plea  in  abatement  occupies 
a  middle  ground  between  the  two.  Its  effect,  if  suc- 

1  ComynS'  Digest,  title  Abatement,  E.  7,  6. 

2  Ibid.,  B.  1. 


DILATORY    PLEAS.  97 

cessful,  is  to  dispose  of  the  particular  suit,  but  the 
plaintiff  may  commence  anew  upon  the  same  cause  of 
action  in  the  same  court,  only  being  careful  to  avoid 
the  mistake  which  caused  the  abating  of  his  former  suit. 

§  134.  The  dilatory  plea,  it  has  been  said  above, 
set  up  new  affirmative  matter.  It  was  held  that  to 
justify  the  court  in  acting  upon  such  matter  there  must 
be  some  guarantee  of  its  truth.  Hence  an  affidavit  of 
truth  was  required  to  be  submitted  with  the  dilatory 
plea,  and  if  the  defendant  failed  to  accompany  his  plea 
with  such  affidavit  of  truth  the  plaintiff  could  disregard 
the  plea  and  enter  his  judgment.1 

§  135.  Neither  the  plea  to  the  jurisdiction  nor  the 
plea  in  suspension  were  so  generally  used  as  the  plea 
in  abatement.  The  last  was  at  common  law  a  very 
important  plea. 

The  dilatory  plea,  while  it  provided  a  means,  like 
the  demurrer,  by  which  the  defendant  could  avoid 
answering  to  the  cause  of  action  set  forth  in  the  decla- 
ration, differed  from  the  demurrer  in  several  important 
features. 

(a).  It  could  be  demurred  to  or  pleaded  to  by  the 
plaintiff.  In  itself  it  was  a  plea  which  set  up  new 
affirmative  matter;  and,  though  that  matter  did  not 
relate  to  the  merits  of  plaintiff's  cause  of  action,  it  was 
material  upon  the  question  of  whether  or  not  the  plain- 
tiff's suit  should  be  thrown  out  entirely  from  the 

i  Wilson  v.  Palmer,  Practical  Register  of  the  Common  Pleas, 
p.  4. 

7 


98  PRINCIPLES  OP  COMMON-LAW  PLEADING. 

particular  court  in  which  the  plaintiff  had  begun  it,  or 
suspended,  or  abated.  Such  matter  could,  therefore, 
be  denied  or  answered  by  new  matter  on  the  plaintiff's 
part,  or  it  could  be  demurred  to. 

(6).  Judgment  upon  the  dilatory  plea  was  not  final, 
as  in  the  case  of  judgment  upon  a  demurrer;  it  did 
not  determine  the  case  upon  the  merits.  Mention  has 
already  been  made  of  the  fact  that  the  plaintiff  could, 
upon  judgment  against  him  upon  a  dilatory  plea, 
either  begin  the  action  again  in  another  court,  proceed 
with  it  in  the  same  court  at  a  later  date,  or  begin  anew 
in  the  same  court.1  In  the  case  of  the  demurrer  he 
could  do  no  one  of  these  things,  as  judgment  ended  the 
case  once  for  all. 

§  136.  Dilatory  pleas,  and  more  especially  the  class 
properly  called  pleas  in  abatement,  seem  to  have  been 
very  widely  used  at  common  law.  They  must  have 
been  looked  upon  with  great  favor  by  the  lawyers  and 
with  no  very  marked  disfavor  by  the  courts.  It  is 
often  said  that  the  rules  respecting  demurrers  to  dila- 
tory pleas  show  that  the  courts  sought  to  discourage  the 
use  of  them,2  but  the  manner  in  which  the  pleas  were 

1  Ante,  p.  ffs. 

2  The  fact  that  the  courts  did  not  give  final  judgment  against 
the  defendant  in  case  a  demurrer  to  his  plea  in  abatement  was 
sustained,  as  they  might  have  done  if  they  had  wished  to  discour- 
age the  plea,   seems  a  stronger  piece  of  evidence  that  the  plea 
was  looked  upon  with  favor,  than   the  fact  that  a  general  de- 
murrer to  a  plea  in  abatement  tested  matters  of  form  as  well  as 
of  substance,  is  of  the  contrary  assertion.    In  fact,  since  the  courts 
allowed  the  defendant  to  plead  again  if  his  plea  in  abatement  was 
held  bad,  there  was  no  hardship  at  all  in  holding  that  a  general 


DILATORY    PLEAS.  99 

used,  and  abused,  seems  hardly  to  bear  out  this  state- 
ment. It  was  not  the  courts,  but  the  legislature,  which 
was  finally  compelled  to  step  in  and  limit  their  effect 
by  statutory  provision.1  The  modern  attitude  of 
courts  is  unfriendly  to  the  use  of  this  class  of  pleas.2 

§  137.  Besides  the  division  of  dilatory  pleas  into 
the  three  general  classes  above  mentioned,  each  class 
may  be  subdivided  with  respect  to  the  matter  which 
is  alleged  as  the  ground  of  the  plea,  so  that  the  whole 
classification  will  be  as  follows: 

demurrer  should  cover  both  matters  of  substance  and  form.  The 
statutory  provision  that  a  party  demurring  because  of  matters 
of  form  should  specify  the  defects  he  relied  upon,  was  enacted  to 
relieve  the  hardship  which  often  resulted  from  a  final  judgment 
being  given  against  a  party  upon  some  technical  point  which  he 
waa  not  prepared  to  meet.  As  no  final  judgment  was  given 
against  the  defendant  upon  a  plea  in  abatement  there  was  no 
need  for  the  application  of  the  statutory  provision. 

iThe  statute  of  3  &  4  William  IV.,  c.  42,  s.  11,  abolished  a 
Very  large  class  of  pleas  in  abatement,  to  wit,  those  of  misnomer 
in  abatement;  section  8  of  the  same  statute  greatly  limited  the 
use  of  the  plea  in  abatement  for  non-joinder  of  parties  defendant. 

2Scheeline  v.  Mosher,  158  Pac.  222. 


100 


PRINCIPLES    OF    COMMON-LAW    PLEADING. 


Dilatory 
Pleas. 


(  A)  .  On  account  of  the  subject  mat- 
ter of  the  action. 

(1).  Pleas  to  the 
jurisdiction 
of  the  court  "* 

(B).On  account  (  (a)  Plaintiff, 
of  the  par-  -j 
ties  to  the  [  (  6  )  .  Defendant, 
suit. 

(2).  Pleas     in 

(A).  On  account  of  temporary  dis- 
ability of  the  plaintiff. 

suspension  • 
of  the  ac- 
tion. 

(  B  )  .  On  account  of  temporary  dis- 
ability of  defendant. 

r  (A).  On   account  f  (a)  Plaintiff, 
of  disabil-  -j 

ity  of  the  [  (6)  .  Defendant, 
parties. 

(B).On  account  of  defects  in  the 
count  or  declaration. 

(3).  Pleas     in< 
abatement. 

(a)  .  In  the  form 
of       the 

(C)  .  On    account 
of    defects  • 

writ. 

in     the 
writ. 

(  5  )  .  In    the    ac- 
tion of  the 

; 

writ. 

§  138.  Some  of  the  more  common  matters  which 
were  made  the  ground  of  pleas  in  abatement  were: 
(1)  the  non-existence  of  the  plaintiff,  as  where  ho  was  a 
fictitious  person;  (2)  the  death  of  the  plaintiff;  (3) 
the  non-joinder  of  a  necessary  party;  (4)  a  misnomer 
of  the  plaintiff  or  the  defendant  in  the  writ  or  decla- 
ration; (5)  the  pendency  of  another  action  for  the 
same  cause.1 

1  Acts  required  by  statutes  as  conditions  of  maintaining  actions 
are  often  the  grounds  of  the  modern  pleas  in  abatement,  e.  g.,  the 
filing  of  a  «opy  of  its  certificate  by  a  corporation.  Cal.  Savings 
&  Loan  Soc.  v.  Harris,  111  Cal.  133.  It  is  to  be  noted  that  the  prin- 
ciples established  by  the  Common-Law  System  of  pleading  are 


DILATORY    PLEAS.  101 

§  139.  There  was  one  rule  which  was  applied  to 
all  pleas  in  abatement,  and  that  was  that  the  plea 
must  furnish  the  plaintiff  with  materials  for  avoiding  in 
another  action  the  mistake  which  was  made  the  ground 
of  the  plea.  Thus,  if  the  plea  was  for  the  reason  that 
the  plaintiff  had  not  joined  a  necessary  party,  it  was 
essential  for  the  plea  to  name  such  party;  if  for  a 
misnomer,  it  was  necessary  for  the  plea  to  give  the 
correct  name. 

§  14O.  The  following  is  an  example  of  a  plea  in 
abatement  for  a  misnomer: 

In  the  Common  Pleas, 

-  Term,  5  George  IV. 
John  Smith,  sued  by  the 

name  of  Henry  Smith, 

ats. 
James  Jones. 

And  John  Smith,  against  whom  the  said  James 
Jones  hath  issued  his  said  writ,  and  declared  thereon, 
by  the  name  of  Henry  Smith,  comes  and  says  that  he 
is  named  and  called  by  the  name  of  John  Smith,  and 
by  that  name  and  surname  hath  always  since  the  time 
of  his  nativity  hitherto  been  named  and  called;  with- 
out this  that  he  the  said  John  Smith  now  is  or  ever  was 
named  or  called  by  the  name  of  Henry,  as  by  the  said 
writ  and  declaration  thereon  founded  is  supposed. 
And  this  he  the  said  John  Smith  is  ready  to  verify, 
wherefore  he  prays  judgment  of  the  said  writ  and 
declaration  thereon  founded,  and  that  the  same  may  be 
quashed,  etc. 

still  enforced  wherever  the  courts  have  to  deal  with  this  sort  of 
plea. 


102          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

CHAPTER  III. 

PLEAS    BY   WAY    OF    CONFESSION    AND   AVOIDANCE 

§  141.  If  a  defendant  decided  that  there  were  no 
defects  in  the  declaration  which  would  be  ground  for 
a  demurrer,  and  if  he  knew  of  no  reason  which  would 
be  good  cause  for  a  dilatory  plea,  or  if,  having  put  in 
such  a  plea,  he  had  been  unsuccessful,  then  it  was 
necessary  for  him  to  put  in  a  plea  which  would  answer 
the  cause  of  action  alleged  against  him.  Such  a  plea 
was  known  as  a  plea  in  bar. 

There  were  two  classes  of  pleas  in  bar  which  were 
open  to  him :  ( 1 )  pleas  by  way  of  confession  and  avoid- 
ance; (2)  pleas  by  way  of  traverse. 

§  142.  The  plea  by  way  of  confession  and  avoid- 
ance is  what  its  name  implies  —  i.  e.,  a  plea  which  con- 
fesses the  truth  of  the  facts  alleged  in  the  declaration 
and  seeks  to  avoid  the  consequences  of  them  by  alleging 
other  facts  which  show  that  the  defendant  should  not 
be  held  liable.  These  new  facts  constituted  what  was 
known  as  affirmative  matter,  and  hence  the  pleas  of  this 
sort  are  frequently  called  affirmative  pleas. 

§  143.  A  plea  by  way  of  traverse  was  in  its  nature 
a  denial  of  some  one  fact  or  of  all  the  facts  set  up  in 
the  plaintiff's  declaration.  The  word  traverse  is  syn- 
onymous with  the  word  denial.  This  class  of  pleas 
will  be  noticed  more  fully  in  the  fourth  chapter.  A 


PLEAS   BY   WAY   OF   CONFESSION   AND   AVOIDANCE.          103 

good  illustration  of  the  form  of  a  plea  by  way  of  con- 
fession and  avoidance  is  shown  by  the  following: 

(Plea  of  infancy  to  an  action  of  debt.) 

"And  the  said  X,  by ,  his  attorney,  comes  and 

defends  the  wrong  and  injury,  when,  etc.,  and  says 
that  he  ought  not  to  be  charged  with  the  said  debt  by 
virtue  of  the  said  supposed  contract.  Because,  he  says, 
that  he,  the  said  X,  at  the  time  of  the  making  of  the 
said  supposed  contract  in  the  said  declaration  men- 
tioned, was  an  infant  within  the  age  of  twenty-one 

years,  to  wit,  of  the  age  of years,  to  wit,  at,  etc., 

aforesaid;  and  this  he  the  said  X  is  ready  to  verify: 
wherefore  he  prays  judgment  if  he  ought  to  be  charged 
writh  the  said  debt,  by  virtue  of  the  said  supposed 
contract,  etc." 

§  144.  It  will  be  noticed  that  the  plea  concludes 
with  the  words,  "  and  this  he  the  said  X  is  ready  to 
verify."  This  conclusion  was  known  as  a  verification. 

All  pleas  by  way  of  confession  and  avoidance  must 
conclude  in  this  manner.1  An  omission  of  this  verifi- 
cation would  be  a  defect  in  form  which  could  be  taken 
advantage  of  by  a  special  demurrer. 

§  145.  It  was  in  early  times  the  practice  for  the 
defendant  to  confess  the  facts  alleged  in  the  declaration 
by  a  formal  admission  of  them  at  the  beginning  of  his 
plea.  Later  it  was  held  that  an  implied  confession 
was  sufficient.  It  is  doubtful  if  a  formal  confession 
was  ever  necessary  to  the  substantial  validity  of  the 

iGoodchild  v.  Pledge,  1  M.  &  W.  363;  Ames'  Cases,  37. 


104          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

plea.     In  the  following  case  it  was  treated  as  a  formal 
defect  only : 

A  v.  X.  Action  of  Debt  upon  a  simple  contract. 
X  pleads  that  he  was  discharged  under  the  Insolvent 
Debtors'  Act  "  from  the  debts  and  causes  of  action 
if  any,  and  each  and  every  of  them."  A  demurs, 
specially  assigning  for  a  cause  that  the  plea  does  not 
confess  the  cause  of  action.  The  plea  was  held  to  be 
bad  in  form,  and  judgment  given  for  the  plaintiff.1 

§  146.  It  was,  however,  finally  established  that  no 
confession  of  the  facts,  direct  or  indirect,  is  necessary 
in  a  plea  by  way  of  confession  and  avoidance,  upon 
the  theory  that  whatever  a  party  does  not  deny,  he 
admits,  for  the  purposes  of  the  action  at  least. 

A  v.  X.  Action  of  Trespass  for  assault  and  battery. 
X  pleads  that  "  if  any  hurt  or  damage  happened  or 
was  occasioned  "  to  A,  it  was  by  reason  of  X  necessarily 
defending  himself.  Special  demurrer,  assigning  for 
a  cause  that  the  plea  does  not  sufficiently  confess  the 
assault  and  battery.  It  was  held  that  the  plea  was  a 
sufficient  confession,  and  judgment  given  for  defendant.2 

§  147.  At  the  present  time  it  is  customary,  in  a 
plea  by  way  of  confession  and  avoidance,  to  state  simply 
the  facts  which  the  defendant  relies  upon  to  relieve 
him  from  responsibility  for  the  act  alleged  in  the  decla- 
ration as  the  plaintiff's  cause  of  action.  The  form  of 
the  plea  is  therefore  a  statement  of  the  facts,  with  an 
offer  to  verify  them.  If  the  plea  is  demurred  to,  the 

1  Gould  r.  Lasbury,  1  C.  M.  &  E.  254;  Ames'  Cases,  34. 

2  Wise  r.  Hodsall,  11  A.  &  E.  816;  Ames'  Cases,  59. 


PLEAS   BY   WAY   OF   CONFESSION   AND   AVOIDANCE.          105 

court  will  assume  that  the  facts  stated  in  the  declaration 
are  true,  as  they  are  not  denied  by  the  plea,  and  will 
determine  whether  the  facts  stated  in  the  plea  constitute 
a  good  defense. 

§  148.  Pleas  by  way  of  confession  and  avoidance 
are  of  two  kinds : 

( 1 ) .  Pleas  in  discharge. 

(2).  Pleas  in  excuse. 

The  distinction  between  the  two  kinds  is  expressed 
in  their  names. 

SECTION  I. —  PLEAS  IN  DISCHARGE. 

§  149.  A  plea  in  discharge  is  one  which  not  only 
admits  the  facts  stated  in  the  declaration  to  be  true, 
but  also  that  the  plaintiff  at  one  time  had  a  good  cause 
of  action  against  the  defendant  upon  such  facts,  and 
then  alleges  new  matter  which  shows  that  the  cause  of 
action  no  longer  exists.  This  new  matter  is  called 
matter  in  discharge. 

§  15O.  The  most  common  forms  of  pleas  in  dis- 
charge are  the  following: 

(1).  Pleas  of  payment,1 — i.  e.,  that  the  defendant 
has  paid  the  debt  or  sum  of  money  sued  for. 

(2).  Pleas  of  release.2  Founded  upon  a  release 
claimed  to  have  been  given  by  the  plaintiff  to  the 
defendant. 

1  Goodchild  r.  Pledge,  1  M.  &  W.  363 ;  Ames'  Cases,  37. 

2  Brooks  v.  Stewart,  9  A.  &  E.  854. 


106          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

(3).  Plea  of  bankruptcy.1  A  special  plea  founded 
upon  the  provision  for  the  discharge  of  the  debtor, 
usually  contained  in  bankruptcy  or  insolvency  statutes. 

(4).  Plea  of  statute  of  limitations.2  A  plea  founded 
upon  the  statute  requiring  actions  to  be  brought  within 
a  certain  time. 

SECTION  II. —  PLEAS  IN  EXCUSE. 

§  151.  A  plea  in  excuse  confesses  the  facts  stated 
in  the  declaration  to  be  true,  and  then  alleges  other 
facts  which,  together  with  the  facts  stated  in  the  decla- 
ration, show  that  the  cause  of  action,  which  the  plaintiff 
has  alleged,  does  not  exist. 

§  152.  Pleas  in  excuse  cannot  be  divided  into 
regular  classes,  as  the  matter  set  up  necessarily  varies 
according  to  the  state  of  facts  in  each  case.  The  use 
of  this  plea,  however,  differs  somewhat  in  the  different 
forms  of  actions,  and  it  will  be  well  to  examine  it  with 
respect  to  each. 

§  153.  In  general  it  may  be  said  that  the  plea  in 
excuse,  in  each  form  of  action  in  which  it  is  used, 
admits  such  statements  of  fact  as  form  the  substance  of 
the  declaration. 

(a).  Special  Assumpsit. 

§  154.  In  special  assumpsit  a  plea  in  excuse  admits 
the  contract, —  i.  e,.,  the  promise  and  consideration,  and 

i  Gould  v.  Laubury,  1  C.  M.  &  R.  254 ;  Ames'  Cases,  34. 
zEavestaff  v.  Russell,  10  M.  &  W.  365;  Ames'  Cases,  38. 


PLEAS   BY   WAY   OF   CONFESSION   AND  AVOIDANCE.          107 

also  the  breach,  in  the  form  in  which  these  matters  are 
alleged  in  the  declaration,  and  then  sets  up  facts  which 
show  that  the  breach  was  not  wrongful,  and  that  there 
is  no  cause  of  action  in  favor  of  the  plaintiff  and  no 
liability  on  the  part  of  the  defendant  therefor. 

§  155.  For  example,  a  collateral  agreement  or  stip- 
ulation bj  which  the  defendant  limited  his  liability  for 
breach  of  a  contract  to  a  certain  time  or  to  a  certain 
amount  may  be  set  up  by  a  plea  in  excuse. 

A  v.  X.  Action  of  assumpsit  on  a  warranty  of  the 
soundness  of  a  horse  sold  by  X  to  A.  A  in  his  declara- 
tion alleges  the  warranty  and  the  breach  thereof,  in 
that  the  horse  was  not  sound.  X  pleads  that  the  horse 
was  sold  at  auction  subject  to  certain  rules,  one  of 
which  was  that  the  seller  should  be  relieved  of  all 
liability  on  a  warranty  unless  notice  of  unsoundness 
was  given  before  noon  of  the  day  after  the  sale. 
Special  demurrer,  assigning  for  cause  that  the  plea 
amounts  to  a  general  denial  of  the  contract,  since  it 
shows  that  the  contract  was  not  as  stated  in  the  declara- 
tion, and  should  have  been  pleaded  under  non  assump- 
sit. The  plea  is  held  good,  for  the  reason  that  it  states 
a  collateral  agreement  or  stipulation.1 

§  156.  It  is  sometimes  difficult  to  distinguish  be- 
tween a  collateral  agreement  and  matter  which  consti- 
tutes a  part  of  the  principal  agreement.  This  does  not, 
however,  belong  strictly  to  the  subject  of  pleading. 
When  the  pleader  has  determined  whether  certain 
matter  is  a  collateral  stipulation  or  is  a  part  of  the 

i  Smart  v.  Hyde,  8  M.  4  W.  723 ;  Ames'  Cases,  42. 


108          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

principal  agreement,  he  may  then,  in  drawing  his  plea, 
apply  the  rule  that,  if  it  is  a  collateral  stipulation,  it 
may  be  pleaded  in  excuse,  as  shown  by  the  above  illus- 
tration, while  if  it  is  a  part  of  the  principal  agreement, 
it  cannot  be  pleaded  in  excuse.  The  following  is  an 
illustration  of  the  latter  proposition : 

A  v.  X.  Action  of  assumpsit,  upon  an  agreement  by 
X  to  carry  goods  safely.  X  pleads  in  excuse  an  ex- 
press condition  in  the  contract  to  the  effect  that  A  was 
to  walk  behind  the  cart  and  watch  the  goods,  and  that 
A  refused  to  do  so.  Special  demurrer,  assigning  for 
cause  that  the  plea  amounts  to  a  general  denial  of  the 
contract  alleged  in  the  declaration,  and  that  non  assump- 
sit should  have  been  pleaded.  The  plea  is  held  bad 
upon  the  ground  assigned.1 

§  157.  Where  a  defendant  wishes  to  show  that 
some  part  of  the  contract  affecting  his  liability, —  for 
example,  a  condition  precedent, —  has  been  omitted  in 
the  statement  of  the  contract  in  the  declaration,  or  that 
the  real  contract  between  himself  and  the  plaintiff  is 
different  in  any  other  respect  from  that  stated  in  the 
declaration,  he  cannot  set  it  up  as  matter  in  excuse. 

A  v.  X.  Action  of  assumpsit.  A  alleges  in  his 
declaration  that  X  agreed  to  buy  from  him  a  certain 
lease  of  a  farm  and  to  pay  for  the  fixtures,  manure, 
etc.,  left  on  the  farm;  that  same  were  worth  £1000, 
and  that  X  refused  to  pay.  X  pleads  that  the  actual 
agreement  was  that  A,  on  receipt  of  the  payment  for 
the  lease,  was  to  execute  and  deliver  an  assignment  of 
same  and  put  plaintiff  in  possession,  which  he  failed 

i  Brind  v.  Dale,  2  M.  &  W.  775 ;  Ames'  Cases,  40. 


PLEAS   BY   WAY   OF    CONFESSION   AND   AVOIDANCE.          109 

to  do.  Special  demurrer  on  the  ground  plea  amounts 
to  non  assumpsit.  The  plea  is  bad  for  the  cause 
assigned.1 

§  158.  If  the  defendant  wishes  to  show  that  there 
was  no  consideration  for  the  contract  alleged  in  the 
declaration,  it  is  clear  that  he  cannot  set  it  up  by  a 
plea  in  excuse;  for  a  statement  that  there  was  no  con- 
sideration is  practically  a  denial  of  the  existence  of  a 
contract. 

A  v.  X.  Action  of  assumpsit.  A  alleges  in  his 
declaration  that  X,  in  consideration  that  A  would  em- 
ploy C  as  a  collecting  clerk,  guaranteed  the  honesty 
of  C  to  the  extent  of  £500 ;  that  A  employed  C,  who 
stole  a  large  amount  of  money;  that  X  had  notice 
thereof,  but  had  refused  to  pay  A.  X  pleads  that  A 
had  already  hired  C  before  X  guaranteed  C's  honesty. 
Special  demurrer.  The  plea  is  bad,  as  it  amounts  to 
non  assumpsit.  If  A  had  hired  C  before  X  promised, 
there  was  no  consideration  for  the  promise,  and  hence 
no  contract.2 

(&).  General  Assumpsit. 

§  159.  In  the  action  of  general  assumpsit  a  plea 
in  excuse  admits  the  facts  which  show  the  existence  of 
a  debt,  the  implied  promise  based  on  such  debt,  and 
the  breach  or  non-payment  of  the  debt,  and  then  sets 

iNash  v.  Breeze,  11  M.  &  W.  352.  In  this  case,  Parke,  B., 
says :  "  I  think  the  plea  ig  bad ;  for  it  certainly  qualifies  the 
contract  stated  in  the  declaration,  and  introduces  a  new  condi- 
tion into  it,  and  therefore  amounts  to  the  general  issue."  See, 
also,  Sieveking  v.  Button,  3  C.  B.  331. 

aLyall  v.  Higgins,  4  Q.  B.  528;  Ames'  Cases,  46. 


110          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

up  other  facts  which  show  that  the  non-payment  of  the 
debt  was  justifiable,  and  that  the  defendant  is  not  liable 
therefor. 

§  160.  If  the  defendant  wishes  to  set  up  as  a  de- 
fense that  the  facts  alleged  in  the  declaration  to  con- 
stitute the  debt  are  not  true, —  for  example,  where  the 
work  done  by  the  plaintiff  was  not  what  the  defendant 
requested, —  he  cannot  plead  this  in  excuse. 

A  v.  X.  Action  of  indebitatus  assumpsit  for  work 
done  by  A  for  X  in  fixing  a  chimney.  X  pleads  that 
the  understanding  was  that  A  was  to  do  the  work  in 
such  a  manner  as  to  prevent  the  chimney  from  smoking, 
which  he  has  not  done.  Special  demurrer,  assigning 
for  cause  that  the  plea  amounts  to  a  denial  of  the  debt. 
The  plea  is  bad  for  the  cause  assigned.  It  is  in  effect 
a  denial  that  A  did  the  work  requested,  and  if  this  were 
so  no  debt  arose.1 

§  161.  It  has  been  seen  2  that,  in  the  form  of  action 
known  as  general  assumpsit,  the  plaintiff  recovers  upon 
a  promise,  which  the  law  implies,  to  pay  a  debt  which 
is  shown  by  the  facts  alleged  in  the  declaration  to  exist. 
It  is  laid  down  as  a  rule  that  the  law  will  not  imply  a 
promise  until  it  is  needed,  and  that  as  a  result  of  this 
rule,  in  a  case  where  credit  is  given,  there  is  no  implied 
promise  until  the  credit  expires.  Hence,  where  the 
defendant  wishes  to  set  up,  for  example,  that  the  goods, 
for  the  price  of  which  the  suit  is  brought,  were  sold  to 
him  upon  credit,  and  that  the  credit  has  not  expired, 

iHayselden  v.  Staff,  5  A.  &  E.  153;  Ames'  Cases,  50. 
2  Ante,  p.  27. 


PLEAS   BY   WAY   OF    CONFESSION   AND   AVOIDANCE.          Ill 

he  cannot  do  it  by  a  plea  in  excuse,  as  it  amounts  to  a 
denial  of  the  implied  promise. 

A  v.  X.  For  goods  sold  and  delivered.  X  alleges 
as  a  defense  "  that  the  goods  were  sold  on  a  credit  of 
four  months,  which  term  had  not  expired  at  the  time 
the  action  was  commenced."  This  plea  is  equivalent 
to  a  general  denial  and  would  be  bad  on  special  de- 
murrer.1 

§  162.  Where  the  defendant  wishes  to  show  that 
the  contract  was  not  as  alleged  by  plaintiff,  but  was  a 
special  one,  he  should  not  plead  in  excuse,  for  he  is  in 
effect  denying  the  implied  promise  and  may  show  the 
special  contract  under  the  general  issue. 

A  v.  X.  For  money  paid  out  to  the  use  of  the  de- 
fendant. X  pleads  that  he  entered  into  a  contract  with 
A  by  which  the  money  paid  out  was  to  be  paid  under 
certain  conditions  which  had  not  been  complied  with. 
The  plea  is  bad  as  amounting  to  the  general  issue.2 

(c).  Debt. 

§  163.  In  the  action  of  debt,  a  plea  in  excuse  ad- 
mits the  subject-matter  of  the  debt,  whether  it  be  the 
sale  of  goods  or  the  performance  of  work  at  the  request 
of  the  defendant,  a  bond,  a  statute,  or  a  judgment,  and 
then  sets  up  matter  which  shows  that  the  defendant's 
failure  to  pay  the  debt  is  justifiable. 

1  Claflin  v.  Baere,  28  Hun,  204. 

2  Morgan  v.  Pebrer,  4   Scott,  230.     Tindal,  C.  J.,   at  p.  243: 
"  What  is  that  in  effect  but  saying  that  the  parties  had  entered 
into  a   special   contract  at  variance  with   the   implied   contract 
declared  upon;   non-assumpsit  would  put  in  issue  all  the  facts 
from  which  the  promise  alleged  might  be  implied  by  law." 


112          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

§  164.  A  debt  being  a  sum  of  money  owing  from 
the  defendant  to  the  plaintiff,  it  exists  as  soon  as  that 
is  given  or  done  upon  which  it  is  founded.  Thus,  if 
goods  are  delivered  to  the  defendant  by  the  plaintiff 
at  the  defendant's  request,  a  debt  exists  immediately 
upon  the  delivery,  although  a  credit  is  given  for  their 
payment.  So,  if  a  bond  is  executed  by  the  defendant, 
conditioned  for  the  performance  of  work  or  the  pay- 
ment of  a  sum  of  money  upon  a  certain  day,  a  debt 
exists  immediately  upon  the  execution  and  delivery  of 
the  bond.  In  the  former  case  the  plaintiff  cannot  bring 
an  action  upon  the  debt  at  once  because  of  the  agree- 
ment as  to  credit,  and  in  the  latter  case  the  defendant 
will  not  be  liable,  in  an  action  in  debt,  until  the  time  is 
up  for  the  performance  of  the  condition.  In  both  cases, 
if  an  action  is  begun  by  the  plaintiff,  the  defendant  will 
have  a  good  defense,  not  in  the  denial  of  the  debt,  but 
in  justifying  its  non-payment  by  pleading  in  excuse 
that  credit  has  not  expired,  or  that  the  time  for  per- 
formance of  the  condition  has  not  expired. 

§  165.     It  will  be  noticed  that  in  respect  to  the 

pleading   of   credit  not   expired    as   a    defense    to  the 

plaintiff's  claim,  the  action  of  debt  differs  from  the 
action  of  general  assumpsit. 

(d).  Trespass. 

§  166.  In  the  action  of  trespass  for  injury  to  the 
person,  a  plea  in  excuse  admits  the  commission  of  the 
act  alleged,  and  sets  up  matter  to  show  that  the  defend- 
ant was  justified  in  committing  the  act;  for  example, 


PLEAS   BY   WAY  OF    CONFESSION   AND   AVOIDANCE.          113 

in  trespass  for  assault  and  battery,  that  he  did  it  in 
self-defense.1 

§  167.  In  the  action  of  trespass  for  injury  to  prop- 
erty, personal  or  real,  a  plea  in  excuse  admits  the  posses- 
sion of  the  property  to  be  in  the  plaintiff  as  alleged  in 
the  declaration,  and  the  commission  of  the  act  of  inter- 
ference upon  which  the  plaintiff  bases  his  cause  of 
action,  and  then  sets  up  matter  to  show  that  the  defend- 
ant's act  was  rightful. 

This  matter  is  usually  something  which  shows  that 
the  defendant  had  an  interest  in  the  property,  to  which 
the  plaintiff's  possession  was  subject,  so  that  the  defend- 
ant had  the  right  to  deal  with  the  property  as  he 
pleased ;  or  something  which  shows  that,  although  the 
plaintiff's  possession  of  the  property  was  rightful,  still 
the  defendant's  act  of  interference  was  justified  by  the 
circumstances  which  attended  it. 

§  168.  The  most  common  plea  in  excuse  where  the 
injury  complained  of  is  to  the  person,  is  that  of  self- 
defense,  known  technically  as  son  assault  demesne  (his 
own  assault  first). 

A  v.  X.  Action  of  trespass  for  assault  and  battery. 
X  pleads  that  at  the  time  of  the  injury  complained  of 
in  the  declaration,  the  plaintiff  A  assaulted  the  defend- 
ant X,  wherefore  X  defended  himself  as  he  lawfully 
might,  and  that  if  A  suffered  any  injury,  the  same  was 
occasioned  by  reason  of  A's  assault  upon  X.  Special 
demurrer,  assigning  for  cause  that  the  plea  amounts  to 

iWise  v.  Hodsall,  11  A.  &  E.  816;  Ames'  Cases,  59. 
8 


114  PRINCIPLES    OF    COMMON-LAW    PLEADING. 

a  denial  of  the  commission  of  the  act  by  X.     The  matter 
is  correctly  pleaded  in  excuse.1 

§  169.  Where  the  injury  complained  of  is  to  per- 
sonal property,  perhaps  the  most  common  plea  in  ex- 
cuse is  oivnersliip  in  the  defendant.  If  the  defendant 
is  the  absolute  owner  of  the  goods,  he  has  the  right 
to  the  immediate  possession  of  them,  and  any  act  of 
interference  with  them,  although  they  may  be  in  the 
actual  possession  of  the  plaintiff,  is  rightful. 

§  17O.  Where  the  injury  complained  of  is  to  real 
property,  a  common  plea  in  excuse  is  that  technically 
known  as  the  plea  of  1'iberum  tenemerilum, —  i.  e.,  that 
the  property  is  the  defendant's  own  freehold. 

§  171.  It  sometimes  happens  that  the  defendant 
wishes  to  show,  as  matter  of  defense,  that  the  alleged 
trespass  was  committed  by  him  involuntarily.  In  such 
case  he  is  virtually  in  the  position  of  denying  the  com- 
mission of  the  act  by  himself  as  a  responsible  being. 
He  is  only  the  instrument  used  by  some  one  else  in  the 
commission  of  the  wrongful  act.  Where  the  defendant 
relies  upon  such  a  defense  as  this,  he  cannot  set  it  up 
in  excuse. 

In  the  case,  of  which  the  next  illustration  is  a  synop- 
sis, it  is  said :  "  If  A  takes  the  hand  of  B  and  with  it 
strikes  C,  A  is  the  trespasser  and  not  B,"  and  the  court, 
by  its  decision  upon  the  facts  before  it,  evidently  ap- 
proved this  statement.  If  B  had  been  sued  in  trespass, 
he  should  have  pleaded  not  guilty. 

iWisc  v.  Hodsall,  11  A.  &  E.  816;  Ames'  Cases,  59. 


PLEAS   BY   WAY   OF   CONFESSION   AND  AVOIDANCE.          115 

§  172.  If  the  defendant  wishes  to  show  that  the 
act,  alleged  as  a  trespass  committed  by  him,  was  some 
act  over  which  he  had  no  control  and  could  not  have 
prevented,  he  cannot  plead  in  excuse,  for  an  act,  which 
he  cannot  control  or  prevent,  is  not  his  act. 

A  v.  X.  Action  of  trespass  for  assault  and  battery. 
X  pleads  that  his  horse  ran  away  without  any  fault  of 
his,  that  he  was  unable  to  stop  him,  and  that  he  ran 
into  the  plaintiff  against  his  will.  Special  demurrer. 
The  plea  is  bad,  as  it  amounts  to  a  denial  of  the  com- 
mission of  the  trespass,  and  not  guilty  should  have  been 
pleaded.1 

§  173,  Sometimes  several  acts  of  trespass  are  al- 
leged in  a  declaration  as  the  ground  of  the  action.  In 
such  a  case  a  plea  in  excuse  must  justify  all  of  the  acts 
or  it  will  be  bad  upon  demurrer.  This  is  upon  the 
principle  that,  as  a  plea  in  excuse  is  a  confession  of  such 
acts  as  it  does  not  justify,  the  plaintiff's  cause  of  action 
is  admitted,  and  he  is  entitled  to  judgment. 

A  v.  X.  Action  of  trespass  quare  clausum  fregit. 
A  alleges  in  his  declaration  that  X,  together  with  cer- 
tain cattle,  broke  into  A's  close  and  trod  down  the  grass, 
etc.  X  pleads  in  excuse  that  he  went  upon  the  land  to 
look  after  the  cattle  by  command  of  his  master,  who 
had  a  right  of  common  in  said  land.  General  demurrer. 
The  plea  is  bad,  for,  while  it  admits  the  trespass  by 
means  of  the  cattle  as  well  as  that  committed  by  X,  it 
justifies  only  the  trespass  committed  by  X.2 

1  Gibbons  v.  Pepper,  1  Ld.  Raymond,  387 ;  Ames'  Cases,  58. 

2  Earl  of  Manchester  v.  Vale,  1  Saunders,  27 ;  Ames'  Cases,  56. 


116          PRINCIPLES    OF    COMMON-LAW    PLEADING. 


(e).  Trover. 

§  174.  The  nature  of  ike  action  of  Trover  has 
already  been  explained.1  It  has  been  seen  that  an 
essential  part  of  the  cause  of  action  alleged  in  the 
declaration  is  the  wrongfulness  of  the  defendant's  act, 
and  that,  unless  the  plaintiff  can  prove  the  act  to  be 
wrongful,  it  does  not  amount  to  a  conversion.  It  results 
from  this  that,  in  this  action,  there  is  no  room  for  a 
plea  in  excuse.  To  admit  the  conversion  would  be  to 
admit  the  wrongfulness  of  the  act,  and  the  defendant 
cannot  consistently  admit  the  act  to  be  wrongful  and 
then  go  on  to  excuse  it. 

A  v.  X.  Action  of  Trover  brought  by  A,  as  assignee 
of  Y,  a  bankrupt,  for  the  conversion  of  goods  possessed 
by  Y  before  his  bankruptcy.  X  pleads  that  he  recov- 
ered a  judgment  against  Y,  and  the  goods  were  seized 
by  the  sheriff  under  his  judgment  at  his  request.  Spe- 
cial demurrer.  The  plea  is  bad,  as  it  sets  up  matter 
which  tends  to  show  that  the  act  of  X  was  not  wrongful. 
This  amounts  to  a  denial  of  the  conversion,  and  X 
should  have  pleaded  not  guilty.2 

§  175.  The  matters  of  defense  which  can  be  set 
up  by  the  defendant  in  an  action  of  trover  can  really 
consist  of  but  two  classes  —  those  which  show  that  the 
defendant's  act  was  not  wrongful,  and  those  which  show 
that  the  plaintiff  had  no  possession,  or  right  of  posses- 
sion, of  the  goods.  It  will  sometimes  happen  that  the 
same  facts  may  show  that  the  act  of  the  defendant  was 

i  Ante,  page  38. 

*  Young  v.  Cooper,  6  Exchequer,  259 ;  Ames'  Cases,  63. 


PLEAS  BY  WAY  OF   CONFESSION  AND  AVOIDANCE.          117 

not  wrongful,  and  also  that  the  plaintiff  had  no  posses- 
sion, or  right  of  possession,  in  the  goods.1  The  last 
illustration  shows  that  matters  of  the  former  class  can- 
not be  pleaded  in  excuse,  and  it  is  equally  true  that 
matters  which  show  that  the  plaintiff  has  no  possession, 
or  right  of  possession,  cannot  be  pleaded  in  excuse. 

A  v.  X.  Action  of  Trover  for  certain  goods.  X 
pleads  in  excuse  that  the  goods  were  left  with  him  to 
secure  the  payment  of  a  sum  of  money  for  board  fur- 
nished by  him  to  A.  Special  demurrer.  The  plea  is 
bad,  as  it  amounts  to  a  denial  of  A's  right  of  possession, 
and  X  should  have  pleaded  a  specific  traverse  of  the 
possession  or  right  of  possession.2 

§  176.  The  plea  in  discharge  is  as  available  in  the 
action  of  Trover  as  in  any  other  action,  for  this  plea 
always  admits  the  wrongful  acts  alleged  and  the 
plaintiff's  cause  of  action  thereon,  but  shows  that  the 
action  no  longer  exists. 

(/).  Detinue. 

§  177.  In  the  action  of  detinue  a  plea  in  excuse 
would  admit  the  plaintiff's  right  of  possession  and  the 
detaining  of  the  goods  by  the  defendant.  By  detain- 
ing is  meant,  not  the  passive  act  of  keeping  the  goods 
where  no  right  to  their  possession  has  been  asserted  by 
the  plaintiff,  but  a  positive  act  of  detention  where  the 
circumstances  are  such  that  there  'is  an  obligation  on 
the  part  of  the  defendant  to  deliver  them  up.3 

iPost,  page   143-144. 

zDorrington  v.  Carter,  1  Exchequer,  566;  Ames'  Cases,  61. 

3  Clements  v.  Flight,  16  M.  &  W.  42;  Ames'  Cases,  66.     Pol- 


118          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

It  would  therefore  seem  that  there  was  little  room 
in  the  action  of  detinue  for  a  plea  in  excuse. 

§  178.  The  right  of  possession  on  the  part  of  the 
plaintiff  is  the  basis  of  the  action.  Matter  which  shows 
a  right  to  detain  the  goods  on  the  part  of  the  defendant 
is  practically  a  denial  of  the  plaintiff's  right  of  posses- 
sion, and  in  such  case  a  plea  of  not  possessed  should  be 
used.  The  authorities,  however,  hold  that  where  the 
defendant  claims  a  lien  on  the  goods  he  must  plead  it 
in  excuse.1 

§  179.  Where  the  defendant  relies  for  his  defense 
upon  the  fact  that  he  offered  to  give  the  goods  up  to 
the  plaintiff,  he  cannot  plead  it  in  excuse.  If  he 
offered  to  give  the  goods  up  when  the  plaintiff  demanded 
them,  he  did  not  detain  them.  The  matter,  therefore, 
is  in  no  sense  an  excuse  for  a  detention  on  the  defend- 
ant's part. 

lock,  C.  B.,  in  the  opinion,  says,  referring  to  several  definitions  of 
the  word  detention :  "  We  are  satisfied  that  the  last  ( that  the 
defendant  holds  the  goods  and  prevents  the  plaintiff  from  having 
the  possession  of  them)  is  the  true  meaning  of  the  word  detain; 
if  it  meant  the  mere  keeping  possession,  not  adverse,  how  could 
such  a  possession  form  the  ground  of  an  action?  If  it  meant 
that  the  defendant  had  omitted,  and  still  omitted,  to  be  active  in 
bringing  the  goods  to  the  plaintiff,  the  action  could  not  be  main- 
tained without  showing  an  obligation  by  contract  to  do  so.  We 
have  no  doubt,  therefore,  that  the  detention  complained  of  is  an, 
adverse  detention." 

i  Mason  v.  Farnell,  12  M.  &  W.  674.  The  case  of  Lane  V. 
Tewson,  1  Gale  &  D.  584;  Ames'  Cases,  112, —  which  held  that  a 
lien  could  be  given  in  evidence  under  a  plea  that  the  goods  were 
not  the  goods  of  the  plaintiff, —  although  correct  in  principle,  does 
not  represent  the  law. 


PLEAS   BY   WAY   OF    CONFESSION   AND   AVOIDANCE.          119 

A  v.  X.  Action  of  Detinue.  A  alleges  in  his 
declaration  that  X  detained  certain  papers  belonging 
to  A.  X  pleads  that  he  tendered  the  papers  to  A.  A 
demurs  specially,  assigning  for  a  cause  that  the  plea 
amounts  to  a  denial  of  the  detention.  The  plea  is  bad 
for  the  cause  assigned.  X  should  have  pleaded  that  he 
did  not  detain  the  goods,  the  technical  plea  for  which  is 
non  detinet.1 

((/).  Replevin. 

§  180.  In  the  action  of  Replevin  there  is  strictly 
no  plea  by  way  of  confession  and  avoidance  in  excuse. 
The  avowry  or  cognizance  has  some  of  the  character- 
istics of  this  plea ;  it  confesses  the  taking,  and  justifies 
it  by  showing  the  defendant's  right  to  the  chattels ;  but 
it  is  more  like  a  declaration  than  a  plea,  and,  upon  the 
facts  showing  the  defendant's  right,  prays  for  affirm- 
ative relief.  There  was  one  case,  however,  where  the 
plea  in  excuse  was  said  to  be  allowable:  when  the 
defendant  relied  upon  the  fact  that  the  property  in  the 
chattels  was  in  himself  or  in  a  stranger  at  the  time  of 
the  seizure,  he  was  permitted  to  plead  this  fact  in  a 
plea  by  way  of  confession  and  avoidance.2  It  was 
usual,  however,  to  plead  this  matter  by  a  plea  in  abate- 
ment. This  defense  really  formed  the  ground  of  a 
claim  for  the  return  of  the  chattels,  and  a  prayer  for 
such  relief  was  added,3  so  that  it  appears  to  have  been 
more  like  the  avowry  in  its  similarity  to  a  declaration, 
than  like  a  plea. 

iPost,  page  136. 

2  Bullet's  Nisi  Prius,  54. 

s  Chitty,  Pleading,  1044. 


120          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

(7i).  Case. 

§  181.  In  the  action  on  the  case,  for  the  same 
reason  as  in  the  action  of  trover  and  that  of  detinue, 
the  plea  in  excuse  plays  an  unimportant  part.  As  has 
been  shown,  the  substance  of  the  declaration  consists  of 
a  statement  of  such  facts  as  are  sufficient  to  show  the 
plaintiff's  right  in  respect  to  the  subject  of  the  action, 
sometimes  called  the  inducement,  and  a  statement  of 
the  wrongful  acts  committed  by  the  defendant.  A  plea 
in  excuse,  if  used,  would  admit  the  substance  of  the 
declaration ;  if  that  is  admitted  the  defendant  has  prac- 
tically confessed  the  wrong  and  precluded  himself  from 
any  defense,  except  matter  in  discharge. 

§  182.  Most  of  the  facts  which,  generally  speaking, 
may  be  regarded  as  excusing  or  justifying  the  alleged 
wrongful  acts  are  really  matters  which  show  that  the 
acts  are  not  wrongful  and  may  be  shown  in  evidence, 
as  will  be  seen  later,  under  the  plea  of  not  guilty. 

§  183.  There  is  one  case,  however,  where  the  plea 
in  excuse  is  available  to  the  defendant.  This  is  in 
an  action  upon  a  case  for  slander  or  libel.  Where  the 
defendant  proposes  to  defend  the  action  by  proving  the 
truth  of  the  slanderous  or  libellous  words,  he  may  set 
it  up  by  plea  in  excuse.  In  fact,  to  avail  himself  of 
this  defense  it  is  the  generally  accepted  rule  that  he 
must  set  it  up  by  plea  in  excuse.1 

i  If  the  action  for  libel  or  slander  is  an  action  upon  the  case 
and  the  rule  be  applied  that  the  general  issue  is  a  denial  of  all 
material  allegations  which  make  up  the  statement  of  the  wrong, 


PLEAS   BY   WAY   OF   CONFESSION   AND   AVOIDANCE.          121 

§  184.  A  notion  formerly  prevailed  that  it  was  a 
good  justification  or  plea  in  excuse  to  an  action  of 
slander  or  libel,  that  the  defendant  had  spoken  or 
written  the  words  complained  of  as  the  words  of  an- 
other. This,  however,  is  not  good  law,  and  a  plea  in 
excuse,  alleging  such  matter  as  a  justification,  will  be 
held  bad  in  substance  upon  a  general  demurrer. 

A  v.  X.  Action  upon  the  case  for  slander.  A  al- 
leges in  his  declaration  that  X  maliciously  said  and 
published  concerning  A  that  A  had  been  arrested.  X 
pleads  that  the  same  time  that  he  said  that  A  had  been 
arrested,  he  also  said  he  had  been  told  so  by  W.  A 
demurs  generally.  The  plea  is  bad  in  substance,  as  it 
contains  no  proper  excuse.1 

§  185.  In  an  action  upon  the  case  for  malicious 
prosecution,  the  fact  that  the  defendant  had  reasonable 
and  probable  cause  for  the  prosecution  of  the  plaintiff 

then  there  would  seem  to  be  no  logical  reason  why  the  Courts 
should  have  excepted  from  the  denial  the  allegation  of  falsity. 
Yet  the  actions  of  libel  and  slander  are  two  of  the  earliest  forms 
of  case,  and  it  may  well  be  there  had  begun  to  crystallize  about 
them  technical  rules1  which  had  their  origin  not  in  the  logic  of 
the  situation  but  in  the  convenience  of  the  pleader,  the  Court 
or  the  Jury  in  trying  the  issues.  Perhaps  there  were  deemed  to 
be  enough  separate  issues  which  could  be  availed  of  under  the 
plea  of  not  guilty  (the  defendant  under  it  might  show  not  only 
that  he  did  not  make  the  libellous  statement,  but  any  excuse 
euch  as  that  it  was  a  privileged  communication)  and  that  it 
would  simplify  the  trial  if  the  parties  and  the  court  might  know 
by  the  pleadings  in  case  the  defendant  proposed  to  prove  the 
truth  of  the  words.  Thus  we  see  a  rule  of  convenience  grafted 
upon  the  system  of  pleading  at  the  expense  of  consistency.  Yet 
the  results  in  this  case  cannot  be  said  to  be  bad. 

i  McPherson  v.  Daniels,  10  B.  &  C.  263 ;  Ames'  Cases,  69. 


122          PKINCIPLES    OF    COMMON-LAW    PLEADING. 

cannot  be  pleaded  in  excuse.  In  this  action,  the  gist 
of  the  wrongful  act  alleged  is  its  maliciousness;  and 
maliciousness,  in  legal  contemplation,  is  lack  of  reason- 
able and  probable  cause.  Therefore  to  allege  reasonable 
and  probable  cause  is  to  deny  the  wrongful  act  which 
is  the  basis  of  the  action,  and  it  is  in  no  sense  matter 
in  excuse. 

A  v.  X.  Action  upon  the  case  for  malicious  prose- 
cution. X  pleads  two  pleas :  ( 1 )  not  guilty ;  (2)  that 
it  is  true  that  he  caused  the  indictment  to  be  brought 
against  A,  but  that  he  had  reasonable  and  probable 
cause.  A  moves  to  strike  out  the  second  plea.  The 
motion  is  granted,  as  the  second  plea  amounts  to  the 
same  as  the  first,  and  the  existence  of  reasonable  and 
probable  cause  can  be  shown  in  evidence  under  the  first 
plea.1 

§  186.  In  an  action  upon  the  case  for  damages 
occasioned  by  negligence,  the  defendant  cannot  set  up 
contributory  negligence  upon  the  part  of  the  plaintiff 
by  a  plea  in  excuse.  If  the  plaintiff  was  guilty  of 
contributory  negligence,  the  defendant's  negligence  is 
not  in  contemplation  of  law  the  cause  of  the  injury  to 
the  plaintiff,  and  therefore  not  a  wrongful  act  as  far  as 
the  plaintiff  is  concerned.  It  does  not,  therefore,  in 
any  sense  excuse  or  justify  the  wrongful  act  alleged  as 
the  basis  of  the  action. 

A  v.  X.  Action  upon  the  case.  A  alleges  in  his 
declaration  that  X  negligently  ran  its  train  into  the 
train  upon  which  A  was  travelling,  whereby  A  was 
injured.  X  pleads  that  A's  injury  was  caused  by  neg- 

i  Cotton  v.  Browne,  3  A.  &  E.  312;  Ames'  Cases,  71. 


PLEAS   BY   WAY   OF   CONFESSION   AND   AVOIDANCE.          123 

ligence  on  the  part  of  the  managers  of  A's  train.  Spe- 
cial demurrer,  assigning  for  cause  that  the  plea  is  an 
argumentative  denial  of  the  wrongful  act.  The  plea 
is  held  bad  for  the  cause  assigned.  X  should  have 
pleaded  not  guilty.1 

§  187.  In  an  action  upon  the  case  against  a  com- 
mon carrier  for  the  loss  of  goods  entrusted  to  his  care, 
if  the  defendant  wishes  to  show,  as  a  defense,  that  the 
goods  were  accepted  by  him  subject  to  certain  conditions 
which  were  not  complied  with,  he  is  virtually  denying 
the  bailment  as  it  is  alleged  in  the  declaration.  Now 
the  bailment  is  the  basis  of  the  plaintiff's  right  to  sue 
the  defendant  for  the  wrongful  act  or  omission  which 
has  resulted  in  injury  to,  or  loss  of,  the  goods.  It 
connects  the  plaintiff  with  the  goods  of  which  the  de- 
fendant has  actual  and  rightful  possession,  in  such  a 
way  as  to  show  that  he  has  an  interest  which  can  be 
the  subject  of  injury,  and  concerning  which  he  can 
assert  his  general  right  to  the  undisturbed  enjoyment 
of  his  property.  Such  matter  as  this,  or  any  matter 
which  tends  to  show  that  the  plaintiff  is  not  connected 
with  the  property  in  such  a  way  as  to  bring  an  action 
concerning  it,  must  be  given  in  evidence  under  a  plea 
denying  the  bailment,  and  cannot  be  pleaded  in  excuse. 

A  v.  X.  Action  upon  the  case.  A  alleges  in  his 
declaration  that  he  delivered  to  X,  a  common  carrier, 
certain  goods  to  be  carried  to  Dublin,  and  alleges  that 
X  did  not  safely  carry  the  goods,  but  by  its  negligence 
lost  them.  X  pleads  that  it  gave  notice  to  A  that  it 

i  Bridge  v.  Grand  Junction  Ry.  Co.,  3  M.  &  W.  244;  Ames' 
Cases,  73. 


124          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

would  not  be  responsible  for  the  loss  of  goods  unless  the 
contents  were  declared  at  the  time  of  delivery;  that  A 
failed  to  declare  the  contents,  and  that  X  therefore 
never  became  responsible  for  the  safety  of  the  goods. 
Special  demurrer,  assigning  for  cause  that  the  plea  was 
an  argumentative  denial  of  the  bailment.  Judgment  is 
given  for  the  plaintiff.  The  plea  should  have  been  a 
traverse  of  the  bailment  and  not,  as  it  was,  in  the  form 
of  a  plea  in  excuse.1 

(i).  Ejectment. 

§  188.  It  has  already  been  explained  2  that  in  the 
action  of  ejectment,  the  real  defendant  was  only  per- 
mitted to  come  in  and  defend  the  action  upon  certain 
conditions,  one  of  which  was  that  he  should  plead  the 
general  issue  —  i.  e.,  not  guilty  —  and  on  the  trial 
admit  everything  except  the  plaintiff's  title.  It  re- 
sulted from  this  that  there  was  no  room  in  this  action 
for  any  plea  in  excuse.3 

1  Crouch  v.  London  &  N.  W.  Ry.  Co.,  7  Exchequer,  705 ;  Ames' 
Cases,  75. 

2  Ante,  page  67. 

3  By  leave  of  the  court,  the  defendant  was  sometimes  permitted 
to  put  in  a  dilatory  plea  to  the  jurisdiction  of  the  court.     Adams 
on  Ejectment,  241. 


PLEAS  BY  WAY  OF  TRAVERSE.  125 

CHAPTEK  IV. 

PLEAS  BY  WAY  OF  TRAVERSE 

SECTION  I. —  GENERAL  REQUISITES. 

§  189.  The  word  traverse  has  been  used  heretofore, 
although  no  explanation  has  been  given  of  its  meaning. 
It  is  synonymous  with  the  word  denial.  Where  the 
defendant  intends  to  rely  for  his  defense  upon  the  fact 
that  the  allegations  contained  in  the  declaration  as  to 
the  subject-matter  of  the  action  are  untrue,  he  must  put 
in  the  plea  known  as  a  traverse.  The  traverse  must 
meet  the  particular  allegations  which  the  pleader 
expects  to  prove  untrue. 

§  190.  Before  taking  up  in  detail  the  different 
kinds  of  traverses,  of  which  there  are  many,  several 
general  principles  applicable  to  all  traverses  should  be 
noticed. 

(1).  Traverses  are  usually  negative  in  form,  though 
they  may  be  expressed  in  affirmative  terms,  as  when 
opposed  to  preceding  negative  allegations,  e.  g.,  ^repli- 
cation by  way  of  traverse  to  a  plea  of  the  statute  of 
limitations. 

§  191.  (2).  It  may  be  laid  down  as  a  rule  that 
traverses  must  be  expressed  in  terms  of  direct  denial, 
and  not  be  indirect  or  argumentative  in  character. 
The  statement  of  facts,  which  are  inconsistent  with 
the  truth  of  an  allegation  in  the  preceding  pleading,  is 


126          PKINCIPLES    OF    COMMON-LAW    PLEADING. 

an  indirect  denial  of  such,  allegation.  This  is  what  is 
known  as  an  argumentative  denial.  A  traverse  framed 
in  this  way  will  be  bad  on  special  demurrer.  There  is 
one  exception  to  this  rule,  in  the  special  traverse,  which 
will  be  explained  later. 

§  192.  (3).  Traverses  must  always  end  with  what 
is  known  as  a  tender  of  issue ;  that  is,  an  expression  in 
formal  terms  of  the  traversing  party's  willingness  for 
a  trial  by  the  jury  of  the  matter  denied.  This  is  called 
concluding  "  to  the  country."  The  following  form 
illustrates  the  manner  in  which,  a  traverse  is  drawn : 

In  the  King's  Bench, 

Term,  5th  George  IV. 

John  Doe     ] 

ads.  }• 

Richard  Roe.  J 

And  the  said  John  Doe,  by  ,  his  attorney, 

comes  and  defends  the  force  and  injury  when,  etc., 
and  saith  that  he  is  not  guilty  of  the  said  supposed 
trespasses  above  laid  to  his  charge,  or  any  part  thereof, 
in  manner  and  form  as  the  said  Richard  Roe  hath 
above  thereof  complained  against  him.  And  of  this  he, 
the  said  John  Doe,  puts  himself  upon  the  country, 
etc. 

§  193.  (4).  When  a  traverse,  in  a  proper  form,  is 
put  in  by  either  party,  the  other,  if  he  does  not  demur, 
must  join  issue, —  i.  e.,  he  must  state  his  willingness 
also  to  go  before  the  jury  with  the  matter.  This  is 
spoken  of  technically  as  a  joinder  of  issue.  Neither 
another  traverse,  nor  matter  by  way  of  confession  and 
avoidance,  can  be  pleaded  to  a  traverse. 


PLEAS  BY  WAY  OF  TEA  VERSE.  127 

§  194.  (5).  A  traverse  must  always  be  confined  to 
allegations  of  fact  contained  in  the  pleading  of  the 
opposite  party.  A  conclusion  of  law,  or  as  it  is  some- 
times known,  matter  of  law,  cannot  be  traversed. 

A  v.  X.  Action  of  case  for  slander.  A  alleges  in 
his  declaration  that  X  called  A  a  "  false  thief,"  to  his 
great  damage.  X  traverses  that  A  was  "  damnified  " 
by  the  words  spoken.  General  demurrer.  The  plea 
is  bad.  It  is  a  conclusion  of  law  that  one  is  injured 
by  being  charged  with  a  crime.  It  is  a  principle  in 
the  law  of  slander  and  libel,  that  words  charging  an- 
other with  a  crime  are  actionable  per  sef  and  no  dam> 
ages  need  be  proved.1 

A  v.  X.  Action  of  replevin  for  taking  cattle.  X 
avows  the  taking,  and  says  that  she  leased  and  re-leased 
certain  land  to  A  (an  old  method  of  conveying  land), 
reserving  rent  and  power  of  distress,  by  virtue  of 
which  said  lease  and  re-lease  A  became  seised  in  fee, 
and  that  X  distrained  for  rent  in  arrear.  A  denies 
that  he  entered  and  was  seised  in  fee  by  virtue  of  the 
lease  and  re-lease.  General  demurrer.  The  plea  is 
bad ;  the  seisin  resulting  from  a  lease  and  re-lease  is  a 
conclusion  of  law.2 

A  v.  X.  Action  of  replevin  for  taking  goods.  X 
avows  the  taking  of  the  goods  as  the  property  of  M. 
A  in  his  plea  3  alleges  a  prior  taking,  by  himself  as 
sheriff,  by  virtue  of  a  writ  issued  against  M.  X  in  his 
replication  denies  that  A  lawfully  held  the  goods  by 
virtue  of  the  writ.  General  demurrer.  The  replica- 
is  bad,  as  it  denies  a  conclusion  of  law.4 

1  Russell's  Case,  Dyer,  26  b,  pi.  171;  Ames'  Cases,  77. 

2  Grills  v.  Mannell,  Willes,  378 ;  Ames3  Cases,  86. 

3  Note  the  usual  names  of  the  pleadings  postponed  one  stage. 
<  Foshay  v.  Riche,  2  Hill,  247 ;  Ames'  Cases,  89. 


128          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

§  195.  (6).  Matters  of  fact  which  are  immaterial 
to  the  substance  of  a  pleading  cannot  be  traversed. 

A  v.  X.  Action  of  ejectment.  X  claims  under 
copy  granted  in  1602.  A  replies  that  his  title  is  un- 
der copy  granted  June  1,  1601.  X  for  rejoinder 
traverses  that  the  Queen  granted  to  A  on  June  1,  1601, 
General  demurrer.  Rejoinder  held  bad,  as  putting  in 
issue  an  immaterial  point,  namely,  the  exact  day  when 
the  copy  was  granted.1 

A  v.  X.  Action  of  trespass  for  assault  and  battery. 
X  pleads  he,  at  the  command  of  the  sheriff,  helped  him 
to  defend  himself  against  A.  A  traverses  the  command. 
General  demurrer.  The  plea  is  bad,  as  a  traverse  of  an 
immaterial  point.  X  had  a  right  to  help  the  sheriff 
without  his  command.2 

A  v.  X.  Action  of  detinue.  X  traverses  the  deliv- 
ery of  the  goods  to  him.  General  demurrer.  The  plea 
is  bad ;  the  delivery  is  immaterial.3 

§  196.  (7).  It  sometimes  happened  that  matter, 
which  constituted  a  good  plea  in  excuse,  apparently 
formed  a  traverse,  because  of  the  fact  that  the  plaintiff 
alleged  in  his  declaration  immaterial  facts  which  were 
contradictory  to  the  facts  contained  in  the  plea.  The 
ingenious  point  was  then  raised  that  the  plea  was  a 
traverse  of  immaterial  matter,  and  therefore  bad,  but 
the  courts  were  prompt  to  hold  that  a  party  could  not, 
by  inserting  in  his  pleadings  allegations  which  were  not 

1  Lane  v.  Alexander,  Cro.  Jac.  202 ;  Ames'  Cases,  79. 

2  Bridgewater  v.  Bythway,  3  Lev.  113;  Ames'  Cases,  82. 
«  Walker  v,  Jones,  2  Cr.  &  M.  672 ;  Ames'  Cases,  89. 


PLEAS    BY    WAY    OF    TRAVERSE.  129 

necessary,  turn  a  plea  otherwise  good  into  one  that  was 
bad  on  demurrer.4 

A  v.  X.     Action  of  debt  against  X  as  sheriff  for 
allowing  debtor  to  escape   (a  sheriff  was  prima,  facie 

*  A  recent  example  of  the  application  of  this  principle,  but  on 
a  motion  to  strike  out  instead  of  on  demurrer,  may  be  found  in 
the  case  of  De  St.  Aubin  v.  Guenther,  232  Fed.  411  (U.  S.  Dist. 
Court).  The  motion  was  to  strike  out  a  traverse  contained  in  a 
reply  to  a  counterclaim  set  up  in  the  defendant's  answer.  The 
traverse  was  of  an  allegation  that  the  defendant  had  no  knowl- 
edge and  gave  no  consent  to  the  plaintiff's  conduct  which  was 
made  the  basis  of  the  counterclaim.  As  it  was  an  allegation 
which  negatived  a  defense  which  the  reply  set  up,  or  as  the 
court  called  it,  an  "  anticipatory  traverse,"  it  was  out  of  place 
and  immaterial  so  far  as  the  declaration  was  concerned.  The 
reply  in  excuse  was  a  good  reply  in  excuse  and  the  addition 
of  a  specific  traverse  of  this  immaterial  allegation,  it  was  held, 
did  not  make  the  reply  objectionable;  the  court  therefore  re- 
fused to  strike  out  the  specific  traverse  of  this  immaterial  alle- 
gation. 

The  court,  per  Learned  Hand,  J.,  says :  A  difficulty  faces  a  pleader, 
however,  when  the  opposite  party  has  already  incorporated  a 
traverse  of  a  possible  plea  in  avoidance  in  his  own  pleading  — 
"  leapt  before  he  came  to  the  stile."  If  he  leaves  unanswered 
such  an  assertion,  though  it  is  not  really  an  allegation  at  all 
(i.  e.,  a  material  allegation?),  he  hazards  it  being  taken  as 
such;  indeed,  he  might  strike  it  out,  for  it  has  no  proper  place 
in  the  first  pleading.  However,  being  placed  in  this  position 
through  the  fault  of  the  first  pleader  it  surely  serves  to  con- 
venience if  he  be  allowed  to  couple  a  traverse  of  this  antici- 
patory traverse  along  with  the  plea  which  the  anticipatory 
traverse  has  denied.  Pullen  r.  Seaboard  Trading  Co.,  165  App. 
Div.  117.  The  result  is  indeed  amorphous  and  racks  the  soul  of 
a  conscientious  pleader,  because  there  is  strictly  no  place  for  a 
traverse  in  a  plea  (in  excuse?)  at  law  at  all,  at  least  where  the 
original  pleading  is  not  alternative  or  double.  Courts  do  not, 
however,  value  so  much  as  formerly  their  logical  integrity,  and 
if  the  result  be  convenient,  no  harm  is  done." 

9 


130          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

liable  on  the  escape  of  a  debtor).  A  alleges  in  his 
declaration  that  X  let  him  escape  voluntarily.  X 
pleads  that  he  re-took  him  upon  fresh  pursuit.  Special 
demurrer,  because  the  plea  amounts  to  a  traverse  of  the 
voluntary  escape.  The  plea  is  a  good  plea  in  excuse; 
the  allegation  of  voluntary  escape  was  immaterial,  and 
the  fact  that  A  alleged  it  in  his  declaration,  and  that 
it  was  contradictory  to  the  matter  in  plea,  will  not  turn 
a  good  plea  in  excuse  into  a  bad  traverse.1 

A  v.  X.  Action  of  assumpsit.  A  alleges  X  was  of 
full  age.  X  pleads  he  was  an  infant.  Special  demur- 
rer, assigning  for  cause  that  the  plea  is  a  traverse  of 
immaterial  matter.  The  plea  is  good ;  it  is  no  traverse, 
for  reasons  stated  above. 

§  197.  (8).  In  the  statement  of  the  facts  consti- 
tuting his  cause  of  action  or  defense,  a  party  sometimes 
so  mingles  material  with  immaterial  matter  that  it  is  im- 
possible to  separate  them.  In  such  case  a  traverse  may 
of  necessity  cover  both,  and  will  not  on  this  account  be 
bad  on  demurrer. 

A  v.  X.  Action  of  replevin  for  taking  cattle.  X, 
as  bailiff,  acknowledges  the  taking,  and  says  he  took 
them  damage-feasant  in  the  freehold  of  L.  A  pleads  he 
was  seized  in  fee  of  a  close  adjoining  L's  close,  and  had 
right  of  common  in  L's  close.  X  denies  that  A  was 
seised  in  fee  of  the  adjoining  close.  General  demurrer. 
The  replication  is  good.  Seisin  in  fee  is  immaterial, 
but  since  A  has  not  alleged  possession,  except  by  the 
allegation  of  seisin  in  fee,  the  whole  may  be  traversed.2 

§  198.  (9).  A  party  traversing,  must  not  by  his 
traverse  compel  his  opponent  to  prove  more  than  would 

1  Sir  Ralph  Bovy's  Ca»e,  1  Vent.  217;  Ames'  Cases,  81. 

2  Sir  Francis  Leke's  Case,  Dyer,  365,  pi.  32 ;  Ames'  Cases,  78. 


PLEAS  BY  WAY  OF  TRAVERSE.          131 

otherwise  be  necessary  in  order  to  sustain  his  case.  A 
traverse  of  an  exact  sum  where  proof  of  a  part  is  suf- 
ficient to  sustain  the  cause  of  action  or  defense,  is  an 
illustration  of  this. 

A  v.  X.  Action  of  debt  on  a  bond ;  conditioned  for 
the  payment  of  £1,550.  X  pleads  part  of  the  sum,  to 
wit,  £1,500,  was  won  in  gaming.  (If  any  part  was 
won  in  this  way  the  bond  would  be  void.)  A  traverses 
that  £1,500  was  won  in  gaming.  General  demurrer. 
The  replication  is  bad;  X  cannot  join  issue  without 
proving  more  than  is  necessary  to  defend  himself.1 

The  same  principle  is  applicable  where  one  trav- 
erses in  the  conjunctive  instead  of  the  disjunctive. 

A  v.  X.  Action  of  Assumpsit  on  a  policy  of  insur- 
ance. A  alleges  that  certain  property  insured  by  X, 
consisting  of  ship  and  tackle  and  other  furniture,  were 
lost.  X  traverses  that  the  ship  and  tackle  and  other 
furniture  were  lost.  General  demurrer.  The  plea  is 
bad.  A  cannot  join  issue  without  proving  that  every- 
thing was  lost ;  whereas,  if  he  proves  part  he  is  entitled 
to  recover.2 

In  an  action  upon  a  covenant  for  quiet  enjoyment, 
it  has  been  sought  to  apply  this  rule  to  a  traverse  of 
the  "  ouster  de  praemissis."  But  such  a  traverse  is 
good,  because  it  does  not  compel  the  plaintiff  to  prove 
an  ouster  from  the  whole  premises. 

A  v.  X.  Action  of  covenant  upon  a  covenant  for 
quiet  enjoyment,  contained  in  a  deed.  A  alleges  X 
ousted  him  from  the  premises.  X  denies  that  he 
ousted  him  from  the  premises.  General  demurrer. 

1  Colburne  r.  Stockdale,  1  Strange,  493;  Ames'  Cases,  85. 

2  Goram  v.  Sweeting,  2  Saunders,  205 ;  Ames'  Cases,  79. 


132          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

The  plea  is  good,  as  A  may  join  issue  and  support  his 
case  by  proving  an  ouster  from  any  part.1 

§  199.  (10).  A  traverse  must  not  be  taken  to  mat- 
ter not  in  the  other  party's  pleading,  but  may  to  what  is 
necessarily  implied  in  it. 

A  v.  X.  Action  of  replevin  for  taking  cattle.  X 
avows  he  was  seised  of  the  locus  in  quo  and  took  the 
cattle  damage-feasant.  A  traverses  that  X  was  sole 
seised, —  i.  e.,  seised  alone.  General  demurrer.  A's 
plea  is  good,  for  the  seisin  claimed  in  the  avowry,  as 
no  one  else  is  mentioned  as  jointly  seised  with  A, 
necessarily  means  sole  seisin.2 

SECTION  II. —  CLASSIFICATION  OF  TKAVEKSES. 

§  200.  Pleadings  by  way  of  traverse  are  divided 
into  several  classes,  according  to  their  scope  and  the 
manner  in  which  they  are  framed. 

As  there  are  pleas  by  way  of  traverse  (or  denial), 
so  there  are  replications  by  way  of  traverse,  rejoinders 
by  way  of  traverse,  etc.  Traverses  include  all  plead- 
ings by  way  of  denial,  whether  made  by  the  defendant 
or  the  plaintiff.  There  are,  however,  particular  forms 
of  traverses  designated  by  different  names,  some  of 
which  may  be  used  only  as  pleas,  and  one  which  is 
available  only  as  a  replication.  The  following  classi- 
fication will  exhibit  the  principal  forms  of  traverses  and 
those  in  most  common  use,  and  also  by  which  party 
to  the  action  each  may  be  used : 

1  White  v.  Bodinam,  2  Salk.  629 ;  Ames'  Cases,  84. 

2  Gilbert  v.  Parker,  2  Salk.  629;  Ames'  Cases,  85. 


PLEAS    BY    WAY    OF    TRAVERSE. 


133 


Traverses  • 


'Non  assump- 

sit 
Nil  debet  or 

Nunquam 

General  Issue  •{      indebitatus 
Non  detinet 

Non  cepit 
Not  guilty 


Pleas. 

Available  only  for  de- 
fendant. 


Specific  Traverse  —  Available  to  either  party  at  any 
stage  of  the  pleadings. 


Special  Traverse  —  Available  to  either  party  at  any 
stage  of  the  pleadings. 


Replication   de   Injuria  —  Available   to    the   plaintiff 

only  as  a  replication. 


SECTION  III. —  GENERAL  ISSUE  AND  SPECIFIC 
TRAVERSES. 

§  2O1.  The  general  issue  is  the  term  applied  to 
the  most  general  form  of  traverse  used  as  a  plea  in  the 
different  forms  of  actions.  It  is  known  by  different 
names  in  the  various  forms  of  actions  in  which  it  is 
used,  as  non  assumpsit  in  contract,  not  guilty  in  trespass. 

A  specific  traverse  is  one  which  denies  specifically 
some  one  particular  allegation  in  the  pleading  of  the 
opposite  party.  Specific  traverses,  of  course,  differ 
according  to  the  nature  of  the  actions  in  which  they 
are  used,  and  the  allegations  which  are  denied  by  them. 

While  the  general  issue  is  used  only  as  a  plea,  spe- 
cific traverses  are  available  to  either  party,  in  answer 
to  any  affirmative  pleading  of  the  opposite  party.  It 
will  be  convenient  to  take  up  the  general  issue  and  spe- 


134          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

cific  traverses  together,  in  connection  with  each  different 
form  of  action. 

(a).  Action  of  Special  Assumpsit. 

§  202.  In  special  assumpsit  the  general  issue  takes 
the  form  of  non  assumpsit. 

It  is  rather  curious  that  the  traverse  non  assumpsit 
should  ever  have  acquired  the  name  of  general  issue. 
Since  the  action  of  assumpsit  was  originally  an  action 
on  the  case,  the  stating  of  the  contract  seems  simply 
to  have  been  the  statement  of  the  plaintiff's  right, — 
i.  e.f  the  inducement;  while  the  statement  of  the  breach 
was  a  statement  of  the  wrongful  act  by  the  defendant. 
One  would  expect,  then,  on  the  analogy  of  other  actions, 
to  find  the  term  general  issue  applied  to  a  traverse  of 
the  breach,  while  the  traverse  of  anything  in  the  induce- 
ment —  the  consideration  or  promise  — would  assume 
the  form  of  a  regular  specific  traverse. 

§  203.  The  effect  of  non  assumpsit  is  to  deny  the 
contract  as  set  forth  in  the  declaration. 

Hence,  when  the  defendant  relies  upon  the  fact  that 
he  made  no  promise  at  all,  that  he  did  not  make  the 
promise  alleged  in  the  declaration,  that  there  was  no 
consideration  for  his  promise,  or  that  the  consideration 
was  different  from  that  alleged,  he  must  plead  non 
assumpsit.1 

§  204.  The  plea  of  non  assumpsit  puts  in  issue 
only  the  material  allegations  of  the  inducement  and 

iLyall  v.  Higgins,  4  Q.  B.  528;  Ames'  Cases,  46,  ante,  p.  109; 
Sieveking  v    Button,  3  C.  B.  331;  Ames'  Cases,  48;  ante,  p.  109. 


PLEAS    BY    WAY    OF    TRAVERSE.  135 

will  not  raise  any  issue  upon  averments  which  are  not 
necessary.1 

A  v.  X.  Declaration  alleges  X  held  a  certain  farm 
under  an  agreement,  made  with  A's  father,  to  leave  the 
farm  in  as  good  condition  as  he  found  it,  that  on  the 
death  of  A's  father  the  farm  descended  to  A  in  fee, 
that  X  did  not  leave  the  farm  in  as  good  condition  as 
he  found  it.  Plea  General  Issue.  After  verdict  for 
A,  X  moved  to  set  it  aside  on  the  ground  A  failed  to 
prove  the  farm  descended  to  him  in  fee,  the  evidence 
showing  it  descended  in  tail.  Motion  denied  as  the 
allegation  as  to  the  fee  was  immaterial.2 

§  205.  It  is  well  settled  that,  under  the  plea  of 
non  assumpsit,  the  defendant  may  take  advantage  of  an 
omission  by  the  plaintiff  to  state  conditions  precedent.3 

The  reason  for  this  is  that  the  defendant  can  truly 
deny  the  contract;  can  say  that  the  contract  alleged  is 
not  the  contract  which  he  made ;  that  he  made  a  con- 
tract with  conditions,  whereas  the  one  alleged  is  abso- 
lute. It  would  seem,  on  principle,  that  this  reason  is 
as  strong  in  the  case  of  conditions  subsequent  as  con- 
ditions precedent,  and  it  is  submitted  that  the  weight 
of  authority  decidedly  supports  this  view.4 

1  Lawes,  Pleading  in  Assumpsit,  p.  35. 

2  Winn  v.  White,  2  Blac,  840. 

s  Brind  v.  Dale,  2  M.  &  W.  775 ;  Ames'  Cases,  40 ;  ante,  p.  108. 

4  Conditions  subsequent  in  the.  contract  must  be  distinguished 
from  stipulations  collateral  to  it,  such  as  that  in  Smart  v.  Hyde, 
ante,  p.  107.  The  former  are  meant  here,  and  have  been  more 
appropriately  called  "conditions  subsequent  in  form,  precedent  in 
effect."  They  are  subsequent,  in  that  the  burden  is  on  the  de- 
fendant to  prove  them,  to  relieve  himself  from  a  prima  facie  lia- 
bility. They  are  precedent,  however,  to  the  existence  in  fact  of 
the  liability. 


136  PRINCIPLES    OF    COMMON-LAW    PLEADING. 

A  v.  X.  Action  of  Assumpsit.  A  in  his  declara- 
tion alleges  an  agreement  by  which  A  was  to  serve  X, 
and  X  to  employ  A,  as  a  commercial  traveler  for  one 
year.  Plea,  non  asswnpsit.  Under  this  plea  X  can 
show  that  there  was  a  special  custom  understood  to  be 
attached  to  all  such  contracts,  by  which  either  party 
could  determine  it  by  giving  three  months'  notice.1 

A  v.  X.  Action  of  Assumpsit  on  an  agreement  by 
X  to  carry  certain  goods  safely.  Plea,  non  assumpsit. 
Evidence  that  there  was  a  special  condition  in  the 
agreement,  "  fire  and  robbery  excepted,"  is  admissible, 
and  will  support  this  plea.2 

§  206.  The  plea  of  non  assumpsit  does  not  deny 
the  breach. 

A  v.  X.  Action  of  Assumpsit.  A  alleges  a  war- 
ranty of  soundness  of  a  horse  sold  by  X  to  A,  and 
alleges  as  a  breach  the  unsoundness  of  the  horse.  Plea, 
non  assumpsit.  X,  under  the  plea,  cannot  show  that 
the  horse  was,  in  fact,  sound.  He  should  have  denied 
the  breach  specifically.3 

§  207.  In  special  assumpsit  the  specific  traverses 
which  may  be  used  as  pleas  are : 

(a).  A  denial  of  performance  on  the  plaintiff's  part 
of  his  side  of  the  contract,  or  of  the  performance,  exist- 
ence, or  happening  of  conditions  precedent. 

A  v.  X.  Action  of  Assumpsit.  A  alleges  in  his 
declaration  an  agreement  by  X  to  buy,  and  by  A  to 

i  Metzner  v.  Bolton,  9  Exchequer,  518;  Ames'  Cases,  93. 
2Lathair:  a  Rutley,  3  D.  &  R.  211.     See  also  4  Campbell,  20; 
12  A.  &  E.  668;  11  C.  B.  N.  S.  369. 

a  Smith  v.  Parsons,  8  C.  &  P.  199;  Ames'  Cases,  91. 


PLEAS    BY    WAY    OF    TRAVERSE.  187 

sell,  the  right  to  certain  music  which  A,  as  composer, 
had  composed.  Plea,  non  assumpsit.  Under  his  plea  X 
cannot  show  that  A  did  not  compose  and  had  no  right 
to  the  music.  He  should  have  traversed  specifically  that 
A  had  any  right  in  the  music  as  composer.  The  pos- 
session by  A  of  such  right  was  a  condition  precedent  to 
A's  ability  to  perform  and  to  X's  liability.1 

(6).  A  denial  of  the  breach  on  the  defendant's  part.2 

(&).  Action  of  General  Assumpsit. 

§  208.  The  general  issue  in  this  form  of  assumpsit, 
as  in  special  assumpsit,  is  non  assumpsit. 

The  theory  of  the  action  of  general  assumpsit  is  the 
same  as  that  of  special  assumpsit,  namely,  recovery  on 
a  promise  contained  in  a  contract.  The  scope  of  the 
plea  is,  therefore,  the  same, —  i.  e.,  it  denies  the  con- 
tract. And,  since  the  contract  in  this  form  of  action 
is  made  up  of  a  debt,  which  is  deemed  the  considera- 
tion, and  an  implied  promise,  the  effect  of  non  assump- 
sit is  to  deny  both  the  debt  and  the  implied  promise. 

§  209.  Hence,  under  the  general  issue,  the  defend- 
ant may  show  that  the  facts  were  not  such  as  to  con- 
stitute a  debt,  or  that  the  law  has  never  raised  an  im- 
plied promise.  The  latter  is  the  case  where  goods  were 
sold,  or  work  done,  on  a  credit  which  has  not  expired, 
and  also  where  there  has  been  a  special  contract  with 
certain  conditions,  which  have  not  been  complied  with 
by  the  plaintiff. 

1  De  Pinna  v.  Polhill,  8  C.  &  P.  78 ;  Ames*  Cases,  92. 

2  Smith  f.  Parsons,  8  C.  &  P.  199 ;  Ames'  Cases,  91. 


138          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

A  v.  X.  Action  of  general  assumpsit  for  goods  sold 
and  delivered.  X  wishes  to  show  that  the  goods  were 
paid  for  immediately  on  delivery.  He  must  plead  non 
assumpsit.  The  facts  were  not  such  as  to  constitute  a 
debt.1 

A  v.  X.  Action  of  general  assumpsit  for  goods  sold 
and  delivered.  X  wishes  to  show  that  the  goods  were 
sold  upon  credit,  which  has  not  expired.  He  must 
plead  non  assumpsit,  as  the  law  will  not  raise  an  implied 
promise  until  it  is  needed;  hence,  not  until  credit 
expires.2 

A  v.  X.  Action  of  general  assumpsit  for  goods  bar- 
gained and  sold.  X  wishes  to  set  up  that  the  goods 
were  sold  under  a  special  written  contract,  with  con- 
ditions which  have  not  been  complied  with  by  A.  X 
may  show  this  under  non  assumpsit,  for  the  law  will 
raise  no  implied  promise  under  such  circumstances.3 

§  210.  The  only  occasion  for  the  use  of  a  specific 
traverse  as  a  plea  to  a  declaration  in  general  assumpsit 
is  in  denial  of  the  breach,  and  in  such  case,  it  is  con- 
ceived, a  denial  of  the  breach  would  amount  to  a  plea 
of  payment.  This  results  from  the  fact  that  the  only 
promise  which  the  law  will  imply  is  one  for  the  pay- 
ment of  money,  and  it  is  upon  such  a  promise  that  the 
action  is  always  based. 

i  Bussey  v.  Barnett,  9  M.  &  W.  312;  Ames'  Cases,  98.  The  case 
has  been  treated  as  indebitatus  assumpsit  for  the  purposes  of 
the  illustration,  though  in  fact  it  was  in  debt. 

Hayselden  v.  Staff,  5  A.  &  E.  153 ;  Ames'  Cases',  50.  See  ante, 
p.  110. 

zBroomfield  v.  Smith,  3  M.  &  W.  542;  Ames'  Cases,  97. 
Treated  as  indebitatus  assumpsit  for  purpose  of  illustration. 

s  Gardner  v.  Alexander,  3  Bowling,  146;  Ames'  Cases,  97. 


PLEAS    BY    WAY    OF    TEAVEESE.  139 

(c).  Action  of  Debt. 

§  211.  The  general  issue  in  the  action  of  debt 
was  originally  nil  debet,  but  after  the  Hilary  Rules  was 
nunquam  indebitatus.  Its  effect  is  simply  to  deny  the 
debt. 

Under  the  general  issue  the  defendant  may  show 
payment  made  on  delivery,  for,  in  that  case,  it  is  held 
no  debt  ever  arises.1 

But  where  the  defendant  relies  on  credit  not  expired, 
or  conditions  not  performed  by  the  plaintiff,  he  cannot 
show  them  under  nunquam  indebitatus,  but  must  plead 
in  excuse. 

A  v.  X.  Action  of  Debt  for  goods  sold.  Plea,  nun- 
quam indebitatus.  X  wishes  to  show  that  the  goods 
were  sold  on  credit  and  that  the  credit  has  not  expired. 
He  should  have  pleaded  it  affirmatively,  i.  e.,  in  excuse; 
for  a  debt  arises  the  moment  the  goods  are  delivered. 

§  212.  Though  the  breach  is  a  necessary  allega- 
tion in  a  declaration  in  debt  on  simple  contract,  it  is 
a  point  of  form  only  and  cannot  be  traversed  by  the 
defendant.  It  would  seem,  therefore,  that  in  this  action 
no  room  is  left  for  a  specific  traverse  to  the  declaration.2 

iBussey  v.  Barnett,  9  M.  &  W.  312;  Ames'  Cases,  98.  While 
this  action  was  brought  in  the  form  of  general  assumpsit,  it  is 
authority  for  the  point,  that  where  goods  are  paid  for  on  deliv- 
ery no  debt  arises,  hence,  if  the  action  had  been  in  debt,  and  the 
defense  was  payment  on  delivery,  the  general  issue,  i.  e.,  nun- 
quam indebitatus,  would  have  been  the  proper  plea. 

2  Goodchild  v.  Pledge,  1  M.  &  W.  363 ;  Ames'  Cases,  37 ;  ante, 
pp.  18-19. 


14:0          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

(d).  Action  of  Trespass. 

§  213.  The  general  issue  in  trespass  takes  the 
form  of  not  guilty.  Its  effect  is  to  deny  merely  the 
act  of  trespass  alleged  in  the  declaration.  It  does  not 
deny  the  wrongfulness  of  the  act,  as  a  direct  act  of 
interference  with  property  or  person  is  a  technical  tres- 
pass even  though  justifiable. 

§  214.  The  defendant  may  show  under  not  guilty 
that  the  act  alleged  was  not  committed,  or  that  he,  the 
defendant,  did  not  commit  it. 

A  v.  X.  Action  of  trespass,  assault  and  battery. 
Plea,  not  guilty.  Under  this  plea  X  may  show  that 
his  horse  ran  away  with  him,  so  that  he  could  not  con- 
trol it,  and  ran  into  the  plaintiff,  for  in  such  case  it 
was  not  his  act.1 

A  v.  X.  Action  of  trespass  quare  clausum  fregit. 
X  pleads  that  C  pushed  him  by  force  across  A's  close. 
Special  demurrer.  The  plea  is  bad  as  it  amounts  to 
not  guilty. 

§  215.  Other  matters,  such  as  contributory  negli- 
gence, self-defense,  defendant's  own  close,  etc.,  cannot 
be  shown  under  not  guilty,  but  must  be  pleaded  in 
excuse. 

A  v.  X.  Action  of  trespass  for  running  into  A's 
carriage  and  killing  one  of  his  horses.  Plea,  not  guilty. 
X  cannot  show,  under  this  plea,  that  the  collision  be- 
tween them  was  the  result  of  A's  negligence.2 

i  Gibbons  v.  Pepper,  1  Ld.  R'm'd,  387. 

-Knapp  v.  Salsbury,  2  Campbell,  500;  Ames'  Cases,  100. 


PLEAS  BY  WAY  OP  TRAVERSE.          141 

§  216.  It  has  been  seen  that  the  action  of  trespass 
may  be  brought  either  for  injury  to  the  plaintiff's  per- 
son or  his  property.1 

If  brought  for  injury  to  the  plaintiff's  person,  there 
seems  to  be  no  room  for  a  specific  traverse  to  the  decla- 
ration. The  acts  of  the  defendant  are  the  only  neces- 
sary allegations  in  point  of  substance,  and  the  general 
issue  covers  them. 

§  217.  Where  the  action  is  for  injury  to  the  plain- 
tiff's property,  personal  or  real,  the  allegation  of  pos- 
session is  necessary,  and  the  specific  traverse  is  used  to 
deny  the  plaintiff's  possession  of  the  goods  or  close,  as 
the  case  may  be ;  being  usually  called  ff  not  possessed  " 
in  the  former  case  and  "  not  the  close  of  the  plaintiff  " 
in  the  latter.  These  traverses  deny  simply  the  pos- 
session of  the  plaintiff,  not  his  right  of  possession.  This 
is  so  because  actual  possession  is  sufficient  to  maintain 
the  action. 

A  v.  X.  Action  of  trespass  for  injury  to  A's  horse. 
Plea,  that  A  was  not  possessed  of  the  horse.  X  cannot 
show,  under  this  plea,  that  the  horse  was  a  borrowed 
horse  at  the  time  of  the  injury  to  it. 

A  v.  X.  Action  of  trespass  quare  clausum  fregit. 
Plea,  the  close  in  the  declaration  mentioned  is  not  A's 
close.  X  cannot  show  that  M  had  a  right  to  the  pos- 
session of  the  close  and  commanded  him  to  enter.2 

lAnte,  p.  34. 

2  Jones  v.  Chapman,  18  L.  J.  Exch.  456 ;  Ames'  Cases,  103, 
contra;  but  see  Slocombe  v.  Lyall,  6  Exch.  119;  Heath  v.  Mil- 
ward,  2  Bing.  N.  C.  98,  and  dicta  Squires  v.  Seward,  16  How. 
Pr.  478;  Patterson  v.  Clark,  20  Iowa,  42?.  The  reasoning 


142          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

§  218.  In  an  action  of  trespass  for  loss  of  service 
(see  anie,  p.  36),  since  the  allegation  of  the  relation  of 
master  and  servant  corresponded  to  that  of  possession 
where  the  injury  complained  of  was  to  the  plaintiff's 
goods,  i.  e.,  since  it  was  matter  of  inducement,  if  the 
defendant  wished  to  show  that  the  relation  did  not 
exist,  it  was  necessary  for  him  to  traverse  it  specifically. 

A  v.  X.  Action  of  trespass  for  injury  to  A's  servant, 
M,  whereby  he  lost  her  service.  Plea,  that  M  was  not 
the  servant  of  A.  Special  demurrer,  assigning  for 
cause  that  the  plea  amounts  to  not  guilty.  The  plea  is 
good ;  the  matter  could  not  be  shown  under  not  guilty, 
which  denies  merely  the  act  of  injury.1 

upon  which  Jones  v.  Chapman  and  similar  cases  may  be  sup- 
ported is  as  follows:  the  moment  the  rightful  owner,  in  person 
or  by  a  servant,  enters  upon  the  land,  the  actual  possession 
revests,  and  the  plaintiff  becomes  a  mere  trespasser.  Hence 
the  defendant,  in  showing  his  right  of  possession  or  that  of  his 
master,  is  virtually  denying  the  plaintiff's  actual  possession.  The 
fallacy  of  this  reasoning  is  that  it  proceeds  upon  the  idea  that 
any  act,  however  trifling,  will  amount  to  an  entry  and  revest  the 
possession  in  the  defendant.  But  an  entry  is  an  act  of  some 
magnitude,  and  while  any  act,  be  it  the  stretching  of  an  arm 
over,  or  the  stepping  of  one  foot  on  the  land,  is  a  trespass,  such 
act  will  not  amount  to  a  common-law  entry.  Until,  therefore, 
the  act  is  of  sufficient  magnitude  to  constitute  an  entry,  posses- 
sion will  not  revest,  and  showing  that  the  defendant  entered  as 
rightful  owner  does  not  deny  the  plaintiff's  possession  at  the  time 
of  the  trespass.  Hence,  while  a  good  defense  under  liberum 
tenementum,  it  cannot  be  shown  under  not  possessed.  The  only 
way  to  avoid  this  conclusion  is  to  adopt  the  doctrine  of  relation 
and  say  that  the  entry,  and  hence  the  revesting,  relates  back  to 
the  time  of  the  first  act.  But  will  the  court  adopt  a  fiction  for 
the  mere  purpose  of  allowing  the  defendant  to  plead  a  certain 
sort  of  plea? 

i  Torrence  r.  Gibbons,  5  Q.  B.  297 ;  Ames'  Cases*,  100. 


PLEAS    BY    WAY    OF    TRAVERSE.  143 

(e).  Action  of  Trover. 

§  219.  The  general  issue  in  the  action  of  trover 
takes  the  form,  of  not  guilty. 

Its  effect  is  to  deny  the  wrongful  act  alleged  as  a 
conversion;  i.  e.,  it  not  only  denies  the  act,  but  also 
that  it  was  wrongful.  It  will  be  observed  that  all  mat- 
ters which,  if  the  form  of  action  were  trespass,  would 
be  properly  pleaded  by  a  plea  in  excuse,  may  in  the 
action  of  trover  be  shown  as  evidence  under  the  plea 
not  guilty. 

A  v.  X.  Action  of  trover.  Plea,  not  guilty.  X 
may  show  that  he  took  the  goods,  as  sheriff,  under  a 
writ.1 

A  v.  X.  Action  of  trover  against  X  as  bailee  of  A's 
goods.  X  pleads  that  before  the  demand  and  refusal 
the  goods  were  accidentally  destroyed  by  fire.  Special 
demurrer.  The  plea  is  bad ;  the  matter  shows  the  con- 
version was  not  wrongful,  and  should  have  been  pleaded 
under  the  plea  not  guilty. 

A  v.  X.  Action  of  trover.  Plea,  not  guilty.  X 
may  show  that  A  gave  the  goods  to  M  as  bailee,  with 
power  to  lend  them;  that  X  borrowed  them  from  M 
and  returned  them  to  M  before  the  demand. 

§  220.  Matters  in  excuse,  which  show  the  act  was 
not  wrongful,  must  be  carefully  distinguished  from  mat- 
ters which  affect  the  plaintiff's  possession  or  right  of 
possession.  The  allegation  of  possession  or  right  of 
possession  connects  the  plaintiff  with  the  goods  in  such 
a  manner  as  to  show  that  the  act  of  conversion  is  a 

i  Young  f.  Cooper,  6  Exchequer,  259 ;  Ames'  Cases,  63. 


144:          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

violation  of  a  right  belonging  to  the  plaintiff,  and  forms 
what  is  called  matter  of  inducement. 

The  plea  of  not  guilty  does  not  deny  (and,  not  deny- 
ing, impliedly  admits)  the  allegation  of  actual  pos- 
session or  right  of  possession,  whichever  the  plaintiff 
may  have  seen  fit  to  rely  upon  in  his  declaration. 

A  v.  X.  Action  of  trover.  Plea,  not  guilty.  X 
cannot  show  a  lien  upon  the  goods,  nor  that  A  stole  the 
goods  from  M,  nor  that  A  held  the  goods  as  bailee  for 
X.  These  are  all  matters  affecting  possession  or  right 
of  possession. 

§  221.  The  important  specific  traverse  to  the  dela- 
ration  in  trover  is  not  possessed,  which  has  the  double 
effect  of  denying  either  the  posession  or  right  of  pos- 
session, accordingly  as  the  plaintiff  relies  on  the  one  or 
the  other. 

This  is  obviously  just,  since  the  defendant  cannot 
tell  upon  which  the  plaintiff  intends  to  rely  until  evi- 
dence is  introduced.  The  allegation  of  the  possession 
in  the  declaration  is  usually  in  such  terms  that  either 
actual  possession  or  right  of  possession,  if  proved,  will 
support  it. 

§  222.  Anything  affecting  the  plaintiff's  possession 
or  right  of  possession  must  be  shown  under  not  pos- 
sessed, as,  for  example,  a  lien. 

A  v.  X.  Action  of  trover  for  a  certain  deed.  Plea, 
not  possessed.  X  may  show  that  A  deposited  the  deed 
with  him  as  security  for  money  advanced,  and  that  the 
money  has  not  been  paid  back.1 

iQwen  v.  Knight,  4  Bing.  N.  C.  54;  Ames'  Cases,  105;  White 
«.  Tealc,  9  L.  J.  R.  Q.  B.  377;  Ames'  Cases,  108;  Dorrington  v. 
Carter,  1  Exch.  566;  Ames'  Cas«s,  61. 


PLEAS    BY    WAY    OF    TEAVERSE.  145 

§  223.  The  plea  not  possessed  does  not  deny  (and, 
not  denying,  impliedly  admits)  the  act  of  conversion 
alleged.  Hence,  under  it  nothing  with  regard  to  the 
wrongful  act  can  be  shown. 

A  v.  X.  Action  of  trover,  alleging  that  X,  as  bailee, 
refused  to  give  the  goods  up.  Plea,  not  possessed.  X 
may  show  that  A  never  bailed  the  goods  to  him  or  that 
A  has  no  right  over  them,  but  cannot  show  that  he,  X, 
did  not  refuse  to  give  the  goods  up. 

§  224.  In  those  cases  where  the  plaintiff  can  prove 
actual  possession.,  and  the  defendant  has  some  good  ex- 
cuse for  the  taking  of  the  goods,  it  would  seem  to  be 
necessary  for  him  to  plead  both  not  possessed  and  not 
guilty  in  order  to  protect  himself  fully,  as  the  following 
illustration  will  show. 

A  v.  X.  Action  of  trover.  X  wishes  to  show  that 
M  stole  the  goods  from  him  and  gave  them  to  A,  and 
he,  X,  took  them  from  A.  A  may  rely  upon  his  actual 
possession.  If  he  does,  X  could  not  support  a  plea  of 
not  possessed,  and  he  would  have  no  other  defense,  since 
not  possessed  admits  the  wrongful  act  alleged  as  a  con- 
version. Not  guilty  would  be  necessary  then,  in  order 
that  X  might  show  that  the  taking  was  not  wrongful, 
if  A  relies  upon  actual  possession.  But  if  X  pleads 
not  guilty  alone,  A  would  immediately  conclude  to  rely 
upon  his  right  of  possession,  which  X  could  not  dispiite, 
since  not  guilty  admits  the  plaintiff's  possession  or  right 
of  possession,  as  he  chooses  to  rely  upon  the  one  or  the 
other. 

§  225.     In  those  cases  where  the  plaintiff  can  rely 
only  upon  his  right  of  possession,  as  where  the  defend- 
ant holds  the  goods  as  a  bailee,  and  refuses  to  give  them 
10 


146          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

up  to  the  plaintiff,  who  is  the  rightful  owner,  a  single 
plea  is  sufficient  to  protect  the  defendant. 

(/).  Action  of  Detinue. 

§  226.  The  general  issue  in  the  action  of  detinue 
takes  the  form  of  non  detinet.  Its  effect  is  to  deny 
the  positive  act  of  detention  alleged  in  the  declaration. 
Tinder  it  matters  which  excuse  such  detention  cannot 
be  shown. 

If  the  defendant  has  offered  to  give  the  goods  up, 
though  they  still  remain  in  his  possession,  he  cannot 
be  said  to  detain  them. 

A  v.  X.  Action  of  detinue.  X  pleads  that  the 
goods  came  into  his  possession  as  a  pledge  for  money 
advanced,  that  the  money  was  paid,  and  that  he  offered 
to  give  the  goods  up.  Special  demurrer.  The  plea  is 
bad,  as  it  amounts  to  non  detinet.1 

§  227.  The  only  important  specific  traverse  to  the 
declaration  in  detinue  is  not  possessed.  Its  effect  is  to 
deny  the  plaintiff's  right  of  possession,  i.  e.,  the  induce- 
ment. Under  it  anything  affecting  that  right  may  be 
shown,  except  a,  lien,  which  must  be  pleaded  in  excuse, 
though  on  principle  it  ought  to  be  allowed  to  be  shown 
under  not  possessed.2 

A  v.  X.  Action  of  detinue  for  a  promissory  note. 
Plea,  non  detinet.  X  cannot  show  that  A  assigned  the 
note  to  M,  and  that  X,  as  servant  of  M,  holds  the  note. 
He  can  show  this  under  not  possessed.3 

1  Clements  v.  Flight,  8  L.  T.  166;  Ames'  Cases,  66. 

2  Ante,  p.  118. 

»  Richards  v.  Frankum,  6  M.  &  W.  420;  Ames'  Cases,  110. 


PLEAS    BY    WAY   OF    TKAVERSE.  147 

(#).  Action  of  Replevin. 

§  228.  It  has  already  been  seen 1  that  in  the  action 
of  Replevin,  if  the  defendant  claims  that  the  seizure 
of  the  chattels  was  a  rightful  one,  his  answer  to  the 
declaration  is  in  the  nature  of  a  cross-declaration,  and 
is  called  an  avowry  or  cognizance. 

If,  however,  he  does  not  wish  to  justify  the  seizure, 
but  to  deny  it,  his  answer  to  the  declaration  takes  the 
ordinary  form  of  a  plea.  In  Replevin,  as  in  the  other 
forms  of  action,  there  is  what  is  known  as  the  general 
issue.  It  is  called  non  cepit,  and  its  effect  is  to  deny 
the  actual  taking  in  the  place  alleged,  and  to  construc- 
tively admit  the  plaintiff's  possession. 

A  v.  X.  Action  of  replevin.  Plea,  non  cepii.  X 
cannot  show  that  the  goods  did  not  belong  to  A,  for 
non  cepii  does  not  put  the  ownership  of  the  property 
in  issue.  If  A  proves  an  actual  seizure  of  the  goods 
by  X,  it  is  sufficient,  and  no  proof  of  property  or  pos- 
session need  be  given.2 

§  229.  Under  the  plea  of  non  cepil,  the  defendant 
may  show,  not  only  that  he  did  not  take  the  goods,  but 
also  that  he  did  not  take  them  in  the  place  alleged. 
This  is  because  the  allegation  of  the  place  of  the  seizure 
is  an  essential  part  of  the  wrongful  act  which  is  the 
basis  of  the  action.3 

§  230.  If  the  defendant  puts  in  an  avowry  or  cog- 
nizance, as  it  is  in  form  like  a  declaration,  it  is  so 

1  Ante,  p.   53. 

2  Dover  v.  Rawlings,  2  Moo.  &  R.  544;  Ames*  Cases,  113. 
a  Ante,  p.  56. 


148          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

treated  with  relation  to  the  subsequent  pleadings.  The 
pleading  by  which  the  plaintiff  answers  the  avowry  or 
cognizance  is  called  a  plea.  This  he  must  frame,  of 
course,  according  to  the  nature  of  his  case.  When  the 
defendant  has  distrained  for  rent,  and,  in  his  avowry, 
has  alleged  the  lease  to  the  plaintiff  and  rent  in  arrear, 
the  traverse  rien  en  arrere  (nothing  in  arrear)  denies 
simply  that  rent  is  due,  admitting  the  lease  to  be  as  the 
defendant  has  alleged.  Hence,  if  the  defendant  has 
alleged  rent  payable  quarterly,  the  plaintiff  cannot, 
under  this  traverse,  show  that  it  was  payable  half- 
yearly. 

A  v.  X.  Action  of  replevin.  X,  in  his  avowry, 
alleges  a  lease  to  A,  in  which  rent  is  payable  quarterly, 
and  alleges  rent  in  arrear.  Plea,  no  rent  in  arrear. 
A  cannot  show  that  the  rent  was  payable  half-yearly; 
the  traverse  impliedly  admits  the  lease  in  the  terms 
stated.1 

§  231.  Specific  traverses  to  the  declaration  are  un- 
usual, though  not  impossible,  in  the  action  of  replevin ; 
the  reason  is,  that  the  defendant  usually  not  only  wishes 
to  defend  himself,  but  also  to  get  a  return  of  the  goods, 
and  to  do  the  latter  he  must  put  in  an  avowry  or  cog- 
nizance. 

§  232.  To  the  avowry  or  cognizance  specific  trav- 
erses are  common,  and  tako  their  usual  place  among 
other  picas,  being  used  wherever  the  plaintiff  wishes  to 
deny  some  single  material  allegation.  The  plea  rien 
en  arrere,  above  mentioned,  though  sometimes  regarded 

iHill  v.  Wright,  2  Esp.  669;  Ames'  Cases,  113. 


PLEAS  BY  WAY  OF  TKAVEKSE.          149 

as  in  the  nature  of  the  general  issue,  seems  to  be  merely 
a  specific  traverse  of  a  fact  in  the  avowrj  which  forms 
part  of  the  matter  showing  the  defendant's  right  to  the 
chattels. 

(/i).  Action  of  Case. 

§  233.  The  general  issue,  in  actions  on  the  case, 
takes  the  form  of  not  guilty.  It  operates  "  as  a  denial 
only  of  the  breach  of  duty  or  wrongful  act  alleged  to 
have  been  committed  by  the  defendant,  and  not  of  the 
facts  stated  in  the  inducement."  The  matters  which 
form  the  inducement  are  those  which  show  the  plaintiff's 
right  with  respect  to  the  subject  of  the  action,  the  right 
of  which  he  claims  the  defendant's  act  is  a  violation. 
Such  matter  is  not  denied  by  the  plea  not  guilty. 

A  v.  X.  Action  of  case.  Declaration  alleges  A  was 
entitled  to  be  taxed,  and  that  X  wrongfully  omitted  to 
insert  her  name  in  the  tax  list,  which  prevented  her 
from  getting  a  license  to  sell  beer.  Plea,  that  A  was 
not  entitled  to  be  assessed.  Under  this  plea  A  does  not 
have  to  show  that  she  was  prevented  from  obtaining 
a  license  by  X's  act, —  i.  e.,  that  it  was  wrongful, —  in 
order  to  recover.  In  order  to  put  this  in  issue,  X 
should  have  pleaded  not  guilty.1 

§  234.  In  the  action  of  Case,  as  in  that  of  trover, 
since  wrongfulness  is  the  essence  of  the  act  complained 
of,  matters  which  show  that  the  act  is  justifiable  may 
be  shown  under  not  guilty;  but  matters  in  excuse  which 
may  be  shown  under  not  guilty  are  only  such  as  tend  to 

i  Perring  v.  Harris,  2  Moo.  &  R.  5;  Ames'  Cases,  120. 


150          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

show  that  the  act  was  not  wrongful,  admitting  the  in- 
ducement to  be  true.  Hence,  here,  as  in  trover,  matters 
in  excuse  must  be  carefully  distinguished  from  matters 
denying  the  plaintiff's  right  as  it  is  set  forth  in  the 
inducement. 

§  235.  ( 1 ) .  Thus  in  case  for  wrongfully  diverting 
water,  not  guilty  does  not  put  in  issue  the  plaintiff's 
right  to  have  the  water  flow  to  his  mill. 

A  v.  X.  Action  of  case.  Declaration  alleges  A  is 
possessed  of  a  mill  and  has  a  right  to  the  water  of  a  cer- 
tain stream;  that  X  wrongfully  diverted  the  water 
away  from  the  mill.  Plea,  not  guilty.  A  proves  the 
act  of  diverting  the  water,  but  does  not  show  a  right  to 
use  it.  A  need  not  prove  his  right.  It  is  a  part  of  the 
inducement  and  not  guilty  admits  it.1 

§  236.  (2).  In  case  for  the  defendant's  dogs  injur- 
ing the  plaintiff's  cattle,  the  scientet knowledge  on 

the  defendant's  part  of  the  ferocious  character  of  his 
dogs  —  is  put  in  issue  by  not  guilty,  since  it  is  no  part 
of  the  inducement,  but  one  of  the  elements  of  the 
wrongful  act  on  the  defendant's  part. 

A  v.  X.  Action  of  case.  Declaration  alleges  X 
wrongfully  kept  dogs,  knowing  them  to  be  ferocious ; 
which  dogs  killed  A's  cattle.  Plea,  not  guilty.  A 
must  prove  the  scienter  in  order  to  recover.2 

§  237.  (3).  In  case  for  deceit,  no  inducement  is 
necessary  (for  every  one  has  a  right  not  to  be  deceived), 

iFrankum  v.  Earl  of  Falmouth,  2  A.  &  E.  452;  Ames*  Cases, 
114. 

2  Thomas  v.  Morgan,  2  C.  M.  &  R.  496;  Ames'  Cases,  116. 


PLEAS    BY    WAY    OF    TKAVEKSE.  151 

and  not  guilty  denies  all  the  material  allegations  in  the 
declaration. 

A  v.  X.  Action  of  case  for  deceit  in  the  warranty 
of  a  horse.  Plea,  not  guilty.  X  may  show  that  he 
made  no  such  warranty,  or  that  the  horse  was  in  fact 
sound.1 

§  238.  (-i).  In  case  for  libel,  not  guilty  seems  to 
deny  not  only  all  material  allegations  in  the  declara- 
tion, but  to  go  even  further,  and,  upon  the  theory  that 
the  declaration  negatives  every  excuse,  it  is  allowable, 
under  this  plea,  to  show  that  the  defendant  had  some 
excuse  for  the  act,  as  that  it  was  a  privileged  commu- 
nication. But  there  is  one  material  allegation,  that  of 
falsity,  which,  under  the  rule  which  has  grown  up,  is 
admitted,  and  cannot  be  negatived  by  the  plea  of  not 
guilty.  To  justify  on  the  ground  of  truth  of  the  words 
alleged  to  be  libellous,  defendant  must  plead  by  way  of 


A  v.  X.  Action  of  case  for  libel  contained  in  a  letter. 
Plea,  not  guilty.  X  may  show  that  the  letter  was  a 
privileged  communication.3 

§  239.  (5).  In  case  for  erecting  something  which 
results  in  some  injury  to  the  plaintiff's  premises,  as, 
for  example,  a  nuisance,  not  guilty  denies  both  the  act 
of  erecting  and  the  injurious  consequences;  for  the 
injurious  consequences  are  what  make  the  act  wrongful. 

1  Spencer  v.  Dawson,  1  Moo.  &  R.  552;  Ames'  Cases,  118. 

2  O'Malley  v.  111.  Publishing  &  Printing  Co.,  194  111.  App.  544, 
at  p.  556.     See  ante,  p.  120. 

3  Lillie  v.  Price,  5  A.  &  E.  645;  Ames*  Cases,  119. 


152          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

A  v.  X.  Action  of  case.  Declaration  alleges  M  is 
in  possession  of  premises  as  tenant  of  A,  that  X  owns 
land  adjoining,  and  wrongfully  erected  a  cesspool 
which  polluted  the  water  in  A's  well.  Plea,  not  guilty. 
X  may  show  that  the  water  in  the  well  was  not  polluted 
by  the  cesspool.1 

§  240.  In  case,  specific  traverses  are  used  to  deny 
such  allegations  in  the  inducement  as  are  material. 
Wherever  the  plaintiff  is  required  to  expressly  state 
facts  to  show  his  right,  for  the  violation  of  which  he 
claims  to  bring  the  action,  the  defendant  can  deny  only 
the  material  allegations  in  the  statement  of  that  right 
by  means  of  specific  traverses. 

A  v.  X  Action  of  case.  Declaration  alleges  a 
judgment  was  recovered  against  one  M;  a  writ  issued 
to  X,  as  sheriff,  to  levy  on  M's  goods ;  that  M  had 
goods  subject  to  the  writ ;  that  X  falsely  made  return 
that  M  had  no  goods  subject  to  the  writ.  Plea,  not 
guilty.  X  cannot  show  that  M  had  no  goods.  He 
should  have  traversed  specifically  that  M  had  goods 
subject  to  the  writ,  for  it  is  part  of  the  inducement, 
one  of  the  facts  tending  to  show  a  duty  on  X's  part 
toward  A,  for  the  violation  of  which  duty  the  action 
is  brought.2 

§  241.  Where  the  plaintiff  alleges,  in  his  induce- 
ment, matter  which  is  immaterial,  but  which  negatives 
matter  which  the  defendant  wishes  to  show  to  prove 
the  act  was  not  done  by  him,  the  defendant,  under  a 
plea  of  not  guilty,  may  still  show  this,  and  need  not 

1  Norton  v.  Scholefield,  9  M.  &  W.  665 ;  Ames'  Cases,  128. 

2  Lewis  v.  Alcock,  3  M.  &  W.  188;  Ames'  Cases,  121. 


PLEAS  BY  WAY  OF  TKA VERSE.          153 

traverse  specifically  the  allegation  in  the  inducement; 
since,  as  a  part  of  the  inducement,  it  was  entirely 
immaterial. 

A  v.  X.  Action  of  case.  Declaration  alleges  that 
A  was  possessed  of  a  horse  which  his  servant  was 
riding ;  that  X  was  possessed  of  a  horse  and  cart  which 
were  under  his  direction;  that  X  so  carelessly  drove 
his  horse  and  cart  that  the  cart  ran  into  A's  horse  and 
injured  it.  Plea,  not  guilty.  X  may  show  that  he 
was  not  driving  the  horse  and  cart  at  the  time  of  the 
accident,  and  need  not  traverse  specifically  that  the 
horse  and  cart  were  under  his  direction.1 

§  242.  In  case  for  malicious  prosecution,  since  the 
plaintiff,  by  the  law  as  it  stands,  is  required  to  allege 
the  conclusion  of  the  prosecution  which  he  claims  to 
have  been  malicious,  as  a  part  of  the  inducement,  the 
defendant,  in  order  to  deny  it,  must  traverse  spe- 
cifically.2 

On  principle,  it  would  seem  that  this  allegation  of 
the  conclusion  of  the  previous  suit  forms  no  part  of 
the  inducement  or  statement  of  the  plaintiff's  right, 
since  every  one  has  a  right  not  to  be  prosecuted 
maliciously. 

It  seems  rather  to  be  a  sort  of  a  condition  to  the 
maintenance  of  the  action  for  malicious  prosecution, 
but  it  is  a  condition  which  the  defendant  should  have 
the  burden  of  proving  unfulfilled.  He  should  plead 
affirmatively  the  non-fulfilment  of  it.  The  plea  would 

i  The  case  of  Tavernour  v.  Little,  5  B.  N.  C.  678 ;  Ames'  Cases, 
125,  is  contra,  but  does  not  represent  the  weight  of  authority. 
zWatkins  v.  Lee,  5  M.  &  W.  270;  Ames'  Cases,  123. 


154          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

then  be  a  peculiar  sort  of  a  plea,  something  akin  to  a 
plea  in  abatement,  merely  going  to  the  prevention  of 
the  present  maintenance  of  the  suit. 

SECTION  IV. —  SPECIAL  TRAVERSES. 

§  243.  The  object  of  the  special  traverse  was  to 
enable  the  party  putting  it  in  to  place  upon  the  record, 
and  thus  bring  directly  before  the  court,  facts  which 
otherwise  he  could  not  have  brought  in  at  all,  or,  at 
least,  not  until  he  introduced  them  as  evidence.1 

To  accomplish  this  object  the  special  traverse  con- 
sists of  two  parts:  (1)  What  is  known  as  the  induce- 
ment; (2)  what  is  commonly  called  the  absque  hoc 
clause. 

§  244.  (1).  Heretofore  the  word  inducement  has 
been  used  as  designating  a  part  of  the  declaration. 
What  is  known  as  the  inducement  of  the  special  traverse 
is  a  different  thing.  As  a  part  of  the  special  traverse, 
the  inducement  is  the  means  by  which  the  object  of 
the  traverse  is  accomplished.  It  is  in  its  nature  an 
indirect  denial ;  i.  e.,  a  denial  by  means  of  introducing 
new  facts  which  necessarily  contradict  the  allegations 
in  the  pleading  of  the  opposite  party.  This,  however, 
by  itself  would  violate  the  rule  that  a  traverse  must  be 
direct  in  its  terms.  To  remedy  this,  or,  as  it  is  some- 
times expressed,  "  to  cure  the  argumentativeness  of  the 
inducement,"  it  is  necessary  to  add  the  second  part  of 
the  special  traverse,  namely: 

i  For  a  good  illustration  of  the  proper  use  of  a  special  traverse, 
eee  Beckham  v.  Knight,  4  Bing.  N.  C.  243. 


PLEAS  BY  WAY  OF  TRAVERSE.          155 

§  245.  (2).  "  That  peculiar  and  barbanms  form- 
ula," the  absque  hoc  clause,  which,  in  its  nature,  is  a 
direct  denial  of  the  same  allegation  that  the  inducement 
denies  indirectly. 

A  v.  X,  as  administrator  of  J.  S.  A  brings  a  writ 
of  scire  facias  against  X.  X  pleads  that  before  admin- 
istration granted  to  A,  administration  was  granted  to 
J.  !N".,  who  is  still  alive.  A  replies  that  J.  N.  died. 
Special  demurrer.  Plea,  argumentative  as  it  stands. 
An  absque  hoc  clause,  namely,  "  absque  hoc  that  J.  1ST. 
is  still  alive,"  would  have  cured  it.  Illustrates  well 
the  subtle  niceness  of  the  old  pleading.1 

The  words  absque  hoc  quod,  however,  are  not  abso- 
lutely necessary  to  a  special  traverse;  et  non  will  do.2 

§  246.  The  special  traverse,  it  seems,  originally 
concluded  with  a  verification  on  account  of  the  new 
affirmative  matter  which  it  contained ;  but  since  the 
Hilary  Rules  (1834)3  it  must  conclude  to  the  country, 
i.  e.,  tender  issue. 

§  247.  If,  then,  the  special  traverse  is  good  in  all 
its  parts,  and  tenders  issue  properly,  or  though  the 
inducement  is  bad  in  substance  or  form,  if  the  absque 
hoc  clause  is  good,  it  cannot  be  pleaded  to;  the  oppos- 
ing party  must  either  join  issue  or  demur. 

A  v.  X.  Action  of  trespass  quare  clausum  fregit. 
X  pleads  liberum  tenementum,  that  the  freehold  was 

iFortescue  v.  Holt,  1  Vent.  213;  Ames'  Cases,  134. 
2  Bennett  v.  Filkins,  1  Saunders'  20;  Ames*  Cases,  131. 
s  These   rules   considerably   changed  the   form   and  scope   of   a 
number  of  the  old  common-law  pleadings,  in  England. 


156          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

in  J.  S.,  who  commanded  him  to  enter.  A  replies,  a 
lease  at  will  from  J.  S.,  absque  hoc  that  J.  S.  com- 
manded X  to  enter.  X  rejoins  that  J.  S.  did  com- 
mand him  to  enter,  absque  hoc  that  J.  S.  leased  to  A 
at  will.  Demurrer.  A's  replication  would  have  been 
bad  on  special  demurrer,  because  the  inducement  con- 
tains matter  entirely  irrelevant,  and  does  not  deny, 
indirectly,  the  same  thing  which  the  absque  hoc  clause 
denies  directly ;  (matter  in  the  inducement  immaterial, 
because  the  entry  of  another,  by  command  of  the  land- 
lord, terminates  a  lease  at  will).  Instead  of  joining- 
issue  or  demurring,  X  pleads  in  his  turn  a  special 
traverse,  thus  violating  the  rule  that  there  can  be  no 
traverse  upon  a  traverse.  Hence,  on  demurrer,  A  will 
have  judgment.1 

§  248.  But  if  the  absque  hoc  clause  is  bad  in  sub- 
stance,—  if  it  denies  immaterial  matter  for  example, 
then  it  may  be  passed  by  without  notice,  and  the 
inducement,  since  it  tenders  no  issue,  may  be  pleaded 
to, —  traversed  or  confessed  and  avoided. 

A  v.  X.  Action  of  trespass  for  fishing  in  A's  fishery 
in  Orford  Haven.  Plea,  that  Orford  Haven  is  an  arm 
of  the  sea  (if  so,  prima  facie  subjects  would  have  the 
right  of  free  fishing,  and  what  follows  is  immaterial), 
in  which  every  subject  has  the  right  of  free  fishing. 
Replication.  Confesses  it  is  an  arm  of  the  sea,  but 
alleges  an  exclusive  right  in  A  by  prescription,  to  fish 
there;  absque  hoc  that  every  subject  has  the  right  of 
free  fishing.  Rejoinder,  that  Orford  Haven  hath  been 
immemorially  an  arm  of  the  sea,  in  which  every  subject 
has  a  right  of  free  fishing;  absque  hoc  that  A  has 
a  prescriptive  right.  Demurrer.  The  replication, 
framed  as  a  special  traverse,  would  have  been  bad  on 

i  Thorn  v.  Shering,  Cro.  Car.  586 ;  Ames'  Cases,  130.    . 


PLEAS    BY    WAY    OF    TKAVEKSE.  157 

special  demurrer,  because  the  inducement  is  matter  in 
confession  and  avoidance.  The  inducement,  however, 
being  good  in  substance,  though  the  absque  hoc  clause 
is  bad,  the  whole  traverse  is  good  on  general  demurrer. 
Since  the  absque  hoc  clause  denies  immaterial  matter, 
the  inducement  could  be  pleaded  to.  The  rejoinder  is 
a  good  special  traverse,  denying,  both  directly  and 
indirectly,  A's  prescriptive  right.  Judgment  for  X.1 

§  249.  The  inducement  must  always  be  of  the 
nature  of  an  indirect  denial.  If  direct,  there  is  no 
room  left  for  the  absque  hoc  clause.  Hence,  if  the 
inducement  is  a  direct  denial,  or  sets  forth  matter  in 
confession  and  avoidance,  the  special  traverse  will  be 
bad  in  form. 

A  v.  X.  Action  of  audita  querela  (a  common-law 
writ).  A  alleges  he  is  under  bond  to  X  to  pay  certain 
sums  on  certain  days  to  M,  that  he  was  prepared  to 
pay  it  at  the  proper  place,  and  offered,  but  that  M  was 
not  there.  Plea,  that  M  was  there  and  A  was  not; 
absque  hoc  that  A  offered  the  sum.  Special  demurrer. 
The  plea  is  bad;  it  contains  a  direct  denial  as  an 
inducement ;  the  absque  hoc  clause  is  a  traverse  of 
immaterial  matter.  The  plea  would  have  been  good 
without  the  absque  hoc  clause.2 

A  v.  X.  Action  of  replevin.  Avowry,  that  M  was 
seised  and  made  a  lease  to  X  for  a  year,  and  that  X 
took  A's  cattle  damage  feasant.  Plea,  that  before  the 
lease  to  X,  M  made  a  lease  to  A,  which  had  not  termin- 
ated; absque  hoc  that  M  made  a  lease  to  X.  Special 
demurer.  The  plea  is  bad;  the  inducement  contains 
matter  in  confession  and  avoidance.3 

i  Mayor,  etc.,  v.  Richardson,  2  H.  Bl.  182;  Ames'  Cases,  138. 
aHuish  v.  Phillips,  Cro.  Eliz.  754;  Ames'  Cases,  130. 
3  Anon.,  3  Salk.  353;  Ames'  Cases,  135. 


158          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

§  250.  The  matter  contained  in  the  inducement 
which  is  in  contradiction  of  the  allegation  which  it 
is  wished  to  deny,  must  not  be  coupled  with  matter 
which  is  in  avoidance  of  it.  In  such  case  the  induce- 
ment would  be  regarded  as  a  plea  in  confession  and 
avoidance  and  the  whole  pleading  would  be  bad  as  a 
special  traverse. 

A  v.  X.  Action  of  covenant  for  non-payment  of 
rent.  The  declaration  alleges  that  M  was  seised  in 
fee  of  the  land  in  1716,  and  then  leased  to  X  with 
covenant  to  pay  rent;  that  X  entered  and  continued 
possessed;  that  M  assigned  the  reversion  to  A;  that 
rent  is  due.  Plea,  that  one  J.  S.  was  seised  in  fee, 
and  conveyed  the  land  to  M  for  life;  that  M  made 
a  lease  to  X;  that  M  afterward  conveyed  the  rever- 
sion to  A ;  and  that  M  died  soon  after,  absque  hoc  that 
A  was  seised  of  the  reversion,  as  A  declares.  Special 
demurrer.  The  plea  is  bad,  because  the  inducement 
contains  matter  in  confession  and  avoidance;  namely, 
that  M's  (the  landlord's)  estate  had  determined,  as  well 
as  an  indirect  denial  of  the  title.1 

§  251.  The  second  part  of  the  special  traverse, 
namely,  the  absque  hoc  clause,  must  always  be  in  the 
form  of  a  direct  denial,  for  it  is  this  clause  which  is 
supposed  to  cure  the  indirectness  of  the  first  part.  In 
addition  to  this  it  must  deny  directly  the  same  matter 
denied  indirectly  by  the  inducement. 

i  Palmer  v.  Ekins,  2  Ld.  R'm'd,  1550;  Amos'  Cases,  136. 
The  illustration  is  put  by  the  court  in  this  case,  and  it  is  said 
that  the  plea  would  be  good  as  a  special  traverse.  The  point, 
however,  does  not  seem  to  be  well  considered,  as  the  plea  ap- 
parently contains  both  matter  in  confession  and  avoidance  and 
in  denial. 


PLEAS  BY  WAY  OF  TRAVERSE.          159 

If  it  fails  in  either  of  these  two  requirements,  the 
special  traverse  will  be  bad  in  form. 

The  following  two  rules  may  be  laid  down  with 
respect  to  the  sufficiency  of  special  traverses  on 
demurrer. 

§  252.  ( 1 ) .  If  either  the  inducement  or  the  absque 
hoc  clause  is  bad  in  form,  the  whole  special  traverse 
will  be  held  bad  on  special  demurrer.1 

(2).  If  either  the  inducement  or  absque  hoc  clause 
is  good  in  substance,  on  general  demurrer,  the  whole 
special  traverse  will  be  held  good. 

§  253.  x\  special  traverse  cannot  be  used  as  a  sub- 
stitute for  the  general  issue,  and  if  so  used  will  be 
held  bad  on  demurrer. 

A  v.  X.  A  alleges  a  contract  by  X  to  pay  A  £10 
per  annum  if  he,  A,  married  the  daughter  of  J.  S.,  and 
that  he  married  her.  X  pleads  he  promised  on  con- 
dition that  if  J.  S.  gave  to  his  daughter  £1000  as  a 
marriage  portion  then  he,  X,  would  pay  the  annuity 
"  without  this  that  the  defendant  promised  as  stated  in 
the  declaration."  Plea  bad  on  demurrer  as  amounting 
to  the  general  issue.2 

§  254.  Similarly  the  special  traverse  cannot  be 
used  in  place  of  the  traverse  rien  en  arrere,  which  is 
sometimes  spoken  of  as  the  general  issue  to  the  avowry 
in  the  action  of  replevin. 

lAnon.,  3  Salk.  353;  Ames'  Casefe,  135. 
2  Barrett  v.  Barrett,  2  Rol.  350. 


160          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

A  v.  X.  Action  of  replevin.  X  makes  conusance 
that  the  seizure  was  for  rent  in  arrear.  A  pleads  that 
the  taking  was  of  X's  own  wrong;  absque  hoc  that 
rent  was  in  arrear.  Special  demurrer.  The  plea  is 
bad;  it  amounts  to  the  traverse  rien  en  arrere,  which 
is  the  regular  traverse  to  an  avowry  or  conusance  where 
the  plaintiff  wishes  to  deny  that  rent  was  in  arrear.1 

SECTION  V. —  REPLICATION  DE  INJUEIA. 

§  255.  The  replication  de  injuria  is  a  traverse  of 
more  general  nature  than  the  specific  traverse,  being 
used  to  deny,  in  general  terms,  the  defendant's  plea. 
Its  fuller  form  is  de  injuria  sua  propria  absque  tali 
causa  (of  his  own  wrong  without  such  cause).  As  its 
name  indicates,  this  traverse  can  only  be  used  by  the 
plaintiff  as  a  replication.2 

Under  the  common-law  system  of  pleading,  a  defend- 
ant could  put  in  but  one  plea  to  the  declaration  of  the 
plaintiff.  A  statute  passed  in  the  time  of  Anne  (-4 
Anne,  c.  xvi.,  §  1)  provided  that  the  defendant  might, 
"  with  the  leave  of  the  same  court,  plead  as  many  sev- 
eral matters  thereto  as  he  shall  think  necessary  for  his 
defense."  To  meet  this  added  advantage  given  to  the 
defendant,  the  replication  de  injuria  was  originated, 
by  which  the  plaintiff,  in  certain  forms  of  action  and  in 
certain  cases,  was  allowed  to  put  in  issue  several  mate- 
rial allegations  in  the  defendant's  plea. 

§  256.  The  forms  of  action  to  which  this  replica- 
tion was  confined  were  trespass,  trespass  on  the  case, 

1  Horn  v.  Lewin,  2  Salk.  583 ;  Ames'  Cases,  135. 

2  Except  in  replevin,  where,  if  used,  it  was  called  a  plea. 


PLEAS    BY    WAY    OF    TRAVERSE.  161 

replevin,  and  assumpsit.  Again,  the  use  of  the  repli- 
cation in  these  forms  of  action  was  limited  to  cases 
where  the  plea  consisted  of  a  plea  by  way  of  confession 
and  avoidance  in  excuse.  Where  the  plea  was  the  gen- 
eral issue,  a  specific  traverse,  or  a  plea  by  way  of 
confession  and  avoidance  in  discharge,,  the  replication 
could  not  be  used. 

A  v.  X.  Action  of  trespass  for  seizing  salt.  X  in 
his  plea  sets  forth  an  act  laying  a  duty  on  salt,  and 
alleges  that  the  salt  was  about  to  be  exported  without 
being  weighed,  and  he  (X)  seized  it,  as  an  officer. 
.Replication  de  injuria.  A  proper  replication,  as  the 
plea  is  in  excuse.  This  case  shows  that  the  statement 
in  Crogate's  Case,1  that  de  injuria  cannot  be  pleaded 
where  the  defendant  justifies  by  authority  of  law,  is 
erroneous.2 

A  v.  X.  Action  of  replevin  for  taking  goods. 
Avowry,  that  X,  as  collector,  seized  the  goods  for  non- 
payment of  taxes.  Plea,  traverse  de  injuria,.  Special 
demurrer.  The  plea  is  good.  This  case  established 
that  the  traverse  de  injuria  could  be  used  in  replevin 
as  a  plea  to  an  avowry  or  cognizance.3 

A  v.  X.  Action  of  assumpsit  on  a  promissory  note, 
Plea,  that  the  note  was  obtained  by  fraud,  of  which  A 
was  aware.  Replication,  de  injuria.  Special  demur- 
rer. The  replication  is  good.  This  case  established 
that  de  injuria  could  be  used  in  assumpsit.4 

§  257.  This  traverse  de  injuria  cannot  be  used 
where  the  plea  consists  of  — 

1  8  Reports,  66 ;  Ames'  Cases,  143. 

2  Chance  v.  Weeden,  2  Salk.  628 ;  Ames'  Cases,  146. 

3  Selby  f.  Bardons,  3  B.  &  Ad.  2 ;  Ames'  Cases,  155. 
*  Isaac  v.  Farrar,  1  M.  &  W.  65 ;  Ames'  Cases,  173. 

11 


162          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

(a).  Matter  of  title  or  interest  in  land,  as  where,  to 
an  action  of  trespass  quare  clausum,  the  defendant 
pleads,  in  justification,  that  the  land  was  his  freehold ; 
i.  e.,  liberum  tenementum.  The  great  importance  at- 
tached to  a  trial  of  title  to  land  accounts  for  this.  A 
specific  traverse  was  regarded  as  necessary  to  put  it  in 
issue. 

A  v.  X.  Action  of  trespass  for  driving  A's  cattle. 
Plea,  that  M,  the  lord  of  the  manor,  granted  a  parcel 
of  land  in  fee  to  D,  that  the  right  of  common  in  ad- 
joining land  went  with  the  said  parcel ;  that  A's  cattle 
came  upon  the  adjoining  land ;  that  X,  by  the  command 
of  D,  drove  them  out.  Replication,  de  injuria.  The 
replication  is  bad;  it  extends  to  the  whole  plea,  and 
thus  puts  in  issue  title.1 

(&).  Matters  of  record. 

A  v.  X.  Action  of  trespass  for  false  imprisonment. 
X  justifies  by  virtue  of  a  writ,  issued  out  of  a  court  of 
record.  Replication,  de  injuria.  Held,  bad  on  de- 
murrer.2 

(c).  Where  the  defendant  derives  authority  for  the 
act  alleged,  either  directly  or  indirectly,  from  the 
plaintiff. 

A  v.  X.  Action  of  trespass  quare  clausum  fregit. 
Plea  that  X  entered  by  the  invitation  of  A.  Replica- 
tion, de  injuria.  Special  demurrer.  Replication  im- 
proper.3 

§  258*  The  replication  de  injuria  will  not  put  in 
issue  immaterial  matter.  If  there  is  immaterial  mat- 
ter contained  in  the  plea,  and  a  replication  de  injuria 

1  Crogate's  Case,  8  Reports,  66 ;  Ames'  Cases,  143. 

2  Fursden  v.  Weeks,  3  Lev.  65 ;  Ames'  Cases,  145. 
8  Comyns'  Dig.  Pleader,  F.  22. 


PLEAS    BY    WAY    OF    TRAVERSE.  163 

is  put  in,  it  will  extend  only  to  the  material  allegations 
in  the  plea. 

A  v.  X.  Action  of  trespass,  assault  and  battery. 
Plea,  that  X  was  seised  of  the  rectory  of  D  in  fee; 
that  X  injured  A  in  defense  of  his  tithe  of  corn,  which 
A  was  about  to  carry  away.  Replication,  de  injuria. 
Special  demurrer.  Replication  good,  for  it  will  not 
put  in  issue  title,  since  the  allegation  of  title  was  im- 
material.1 

A  v.  X.  Action  of  trespass  for  assault  and  battery. 
Plea,  that  A  was  the  apprentice  of  X  and  conducted 
himself  improperly,  wherefore  X  moderately  chastised 
him.  Replication,  de  injuria.  Issue  joined.  A  can- 
not show,  under  this  replication,  that  X  used  excessive 
violence.  Prima  facie  X  had  the  right  to  chastise  A, 
and  the  excess  should  have  been  replied  affirmatively 
by  A.  The  allegation  of  moderateness  in  the  plea  was 
immaterial.2 

§  259.  Nor  can  the  replication  de  injuria  be  used 
where  the  plea  of  the  defendant  amounts  to  a  traverse. 

A  v.  X.  Action  of  case  for  malicious  prosecution. 
Plea,  that  A  was  indebted  to  X,  and  became  a  bank- 
rupt, wherefore  X  sued  out  a  commission  of  bank- 
ruptcy. Replication,  de  injuria.  Special  demurrer. 
The  plea  amounts  to  not  guilty,  as  it  is  a  denial  of  the 
wrongful  prosecution ;  de  injuria  should  not  have  been 
used.3 

A  v.  X.  Action  of  assumpsit  on  a  bill  of  exchange. 
Plea,  that  X  accepted  in  blank,  and  consented  that  A 
should  draw  the  bill,  payable  at  two  months,  yet  A  made 
it  payable  one  month  after  date.  Replication,  de  in- 

1  Taylor  v,  Markham,  Cro.  Jac.  224;  Ames'  Cases,  145. 

2  Penn  v.  Ward,  2  C.  M.  &  R.  338 ;  Ames'  Cases,  170. 
80'brien  v.  Saxon,  2  B.  &  C.  908;  Ames'  Cases,  153. 


164          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

juria.       Special    demurrer.       Replication    improperly 
used.     The  plea  amounts  to  non  assumpsit.1 

§  260.  Nor  can  the  replication  de  injuria  be  used 
where  the  defendant  puts  in  a  plea  of  set-off,  for  a 
set-off  is  not  matter  in  excuse,  but  is  a  cross-demand 
made  by  the  defendant. 

A  v.  X.  Action  of  debt,  goods  sold  and  delivered. 
Plea,  that  A  was  an  undisclosed  principal,  and  sold 
the  goods  through  M,  and  that  a  debt  was  due  from  M 
to  X.  Replication,  de  injuria.  Special  demurrer. 
Replication  improperly  used.  Plea,  not  in  excuse.2 

§  261.  The  replication  de  injuria  extends,  when 
used,  to  the  whole  of  the  defendant's  plea,  and  puts 
in  issue  all  the  material  allegations  in  it.3  But  the 
plaintiff  may  expressly  except  and  admit  those  parts 
to  which  he  does  not  'wish  the  traverse  to  apply,  and 
then  it  will  apply  only  to  the  remainder.  This  the 
plaintiff  usually  does  when  part  of  the  plea  is  matter 
to  which  de  injuria  is  inadmissible. 

A  v.  X.  Action  of  assumpsit  on  a  contract  by  which 
X,  the  owner  of  the  ship,  agreed  to  allow  A  to  perform 
the  duties  of  second  mate,  and  pay  him  therefor,  alleg- 
ing a  refusal  by  X  to  allow  him  to  perform  his  duties. 
Plea,  that  on  the  voyage  M,  the  captain,  died,  and  S, 
by  his  right  as  first  mate,  assumed  the  duties  of  captain, 
and  that  A  was  guilty  of  mutiny.  Replication.  True 
it  is  that  S  exercised  the  duties  of  captain,  as  in  the 
plea  mentioned,  but  de  injuria  as  to  the  residue  of  the 
plea.  A,  having  admitted  S's  capacity  as  captain,  can- 
not show  that  it  was  limited;  de  injuria  applies  only 
to  the  mutiny.4 

1  Fisher  v.  Wood,  4  Dowl.  N.  S.  54;  Ames'  Cases,  177. 

2  Salter  v.  Purchell,  1  Q.  B.  197 ;  Ames'  Cases,  178. 
s  Crogate's  Case,  8  Rep.  66;  Ames'  Cases,  143. 

*  Penno  v.  Bennett,  3  Gale  &  Dav.  54. 


DUPLICITY.  165 

CHAPTER  V. 

DUPLICITY. 

§  262.  One  of  the  main  objects  of  the  system  of 
pleading  which  prevailed  at  common  law  was  to  pre- 
sent the  case  to  the  jury  in  as  simple  a  form  as  possible. 
The  idea  was  that  the  minds  of  the  jury  must  not  be 
perplexed  by  numerous  issues,  but  that  the  case  must 
go  before  them  upon  a  single  question  of  fact.  The 
rule  against  duplicity  was  one  of  the  means  by  which 
this  end  was  accomplished.  It  was  held  that  a  pleading 
was  defective  which  was  double  —  i.  e.,  which  con- 
tained more  than  a  single  cause  of  action  or  defense.1 

Where  a  declaration  stated  two  or  more  distinct 
grounds  to  support  the  same  claim,  or  where  a  plea, 
replication,  or  rejoinder  contained  two  or  more  distinct 
answers  to  the  matter  alleged  in  the  preceding  pleading, 
the  rule  against  duplicity  was  violated.  The  defect 
could  be  taken  advantage  of  by  a  special  demurrer. 

A  v.  X.  Action  of  assumpsit.  The  declaration 
alleges  an  agreement  by  X  to  pay  one  hundred  dollars 
for  a  horse,  in  consideration  of  A's  agreement  to  sell 
it  to  him,  with  alternative  conditions,  either  that  the 
horse  should  be  delivered  by  such  a  day,  or  that  A 
should  break  him  to  harness.  A  alleges  that  he  broke 

i  While  several  causes  of  action  may,  under  the  modern  systems 
of  pleading,  be  joined,  each  must  be  in  a  separate  count.  If 
in  a  single  count  two  causes  of  action  are  alleged,  a  declaration 
is  bad  on  special  demurrer.  Cohen  v.  Home  Ins.  Co.,  95  AtL 
912  (Del.). 


166          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

the  horse  to  harness,  and  delivered  him  by  the  required 
day,  and  alleges  as  a  breach  that  X  refused  to  pay  him 
the  $100.  Special  demurrer.  The  declaration  is 
double;  the  performance  of  either  condition  precedent 
would  have  given  him  a  right  of  action. 

A  v.  X.  Action  of  debt  upon  a  bond,  with  condition 
to  abide  by  an  award  if  the  award  was  made  and 
delivered  by  such  a  day.  Plea,  no  award  made  or 
delivered  by  the  day.  Special  demurrer.  Plea, 
double;  a  single  denial,  either  of  the  making  or  of 
the  delivering  of  the  award,  would  have  sufficed  to 
defeat  the  declaration.1 

A  v.  X.  Action  of  debt  on  a  bond.  Condition,  the 
payment  by  X  of  a  certain  sum  at  two  fixed  days. 
Plea,  that  X  paid  accordingly.  Replication,  that  X 
has  not  paid  accordingly.  Replication,  double ;  a  denial 
of  payment  at  one  day  would  have  sustained  A's  case.2 

A  v.  X.  Action  of  indebitatus  assumpsit.  The 
declaration  alleges  X  was  the  drawer  of  a  bill  of  ex- 
change on  M ;  that  A  was  the  holder ;  that  the  bill 
was  presented  for  acceptance,  and  dishonored ;  that 
the  bill  was  presented  later  for  payment,  and  dishon- 
ored ;  of  all  of  which  X  had  notice ;  and,  in  consider- 
ation of  the  premises,  promised  to  pay  A  the  amount 
of  the  bill  on  request.  Special  demurrer,  for  duplicity. 
The  declaration  was  held  good.  On  the  view  that  the 
liability  of  the  drawer  arises  absolutely  upon  the  first 
dishonor,  it  would  seem  that  the  declaration  is  double ; 
for,  then,  either  dishonor  without  the  other  would 
furnish  a  ground  for  the  implied  promise.3 

lAnon.,  Brooke's  Abr.,  Title,  Double  Plea,  pi.  90;  Ames'  Cases, 
185. 

zSaunders  r.  Crawley,  1  Rolle,  112;  Ames'  Cases,  186. 
8  Galway  r.  Rose,  6  M.  &  W.  291 ;  Ames'  Cases,  204. 


DUPLICITY.  167 

A  v.  X.  Action  of  assumpsit  on  a  bill  of  exchange. 
Plea,  that  X  accepted  the  bill  while  he  was  an  infant, 
and  left  it  blank  as  to  date;  that  A  altered  the  bill 
by  inserting  a  date  as  if  given  after  X  became  of  age ; 
that  X  never  assented  to  it.  Special  demurrer,  for 
duplicity.  The  plea  is  good.  It  amounts  simply  to  a 
plea  of  infancy.1 

§  263.  As  a  rule  of  common-law  pleading  this  rule 
against  duplicity,  it  is  conceived,  is  without  exception. 

It  has  been  said 2  that  a  defense  pleaded  as  a 
"  necessary  inducement  "  to  another  defense  will  not 
operate  to  make  a  pleading  double.  There  is  no 
foundation  for  this  alleged  exception.  Dame  Audley's 
case,3  which  is  cited  as  the  authority  for  it,  does  not 
support  it.  The  case  was  one  of  detinue  brought  by 
Dame  Audley,  a  married  woman;  the  defendant 
pleaded  the  marriage  of  the  plaintiff  to  Lord  Audley 
after  the  bailment,  and  a  release  by  him.  In  no  case 
could  this  matter  constitute  more  than  a  single  defense ; 
for  — 

(a).  If  the  detainer  took  place  after  the  marriage, 
the  marriage  was  a  complete  and  the  only  defense ; 
the  allegation  of  release  was  immaterial  as  against  the 
plaintiff ;  for,  upon  marriage,  the  property  in  the  goods 
passed  to  the  husband,  and  no  right  of  action  ever 
vested  in  the  plaintiff. 

(&).  If  the  detainer  took  place  before  marriage,  the 
marriage  itself  was  no  defense,  since,  at  the  time  of 
the  marriage,  Dame  Audley  possessed  simply  a  chose 

1  Harrison  v.  Cotgreave,  5  D.  &  L.  169;  Ames'  Cases,  204. 

2  Stephens,  Pleading,  260. 

s  Moore,  25 ;  Ames'  Cases,  185. 


168          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

in  action,  and  if  the  husband  had  not  reduced  the  chose 
in  action  into  possession,  or  released  it,  it  would  still 
remain  in  the  plaintiff.  The  release,  therefore,  was  the 
only  defense. 

It  will  be  seen,  therefore,  that  in  no  case  can  the  plea 
amount  to  more  than  a  single  defense,  and  there  is  no 
ground  for  the  alleged  exception. 

§  264.  It  is  sometimes  stated  that  a  replication 
containing  two  distinct  averments  will  not  be  bad  for 
duplicity  if  the  defendant  cannot  tender  issue  upon 
both  without  departing  from  his  plea,  thus  seemingly 
presenting  an  exception  to  the  general  rule.  The  fact 
is,  however,  that  in  such  a  case  one  of  the  averments 
will  always  be  mere  surplusage,  and  the  replication 
could  thus  in  no  way  be  double. 

A  v.  X.  Action  of  debt  on  a  bond.  The  condition 
of  the  bond  was  that  X  should  pay  A  forty  pounds  a 
year  as  long  as  X  should  enjoy  a  certain  office.  Plea, 
that  the  office  was  granted  for  three  lives,  and  so  long 
X  enjoyed  it,  and  paid  the  forty  pounds  yearly  so  long. 
Replication,  that  X  enjoyed  the  office  longer,  and  that 
he  had  not  paid  the  money  for  that  longer  time.  Spe- 
cial demurrer,  for  duplicity.  Replication  not  double. 
The  second  allegation  is  surplusage.1 

§  265.  Duplicity  is  a  formal  defect,  and  must  be 
taken  advantage  of  by  special  demurrer.2  Hence,  a 
pleading  bad  for  duplicity,  once  pleaded  to,  cannot  be 

iGaile  v.  Betts,  3  Salk.  142;  Ames'  Cases,  186. 
2  Euer,  Doctrina  Placitandi   (1667),  118;  Saunders  v.  Crawley, 
1  Rollos,  112. 


DUPLICITY. 

afterward  challenged  on  that  ground,  and  is  said  to  be 
cured. 

A  v.  X.  Action  of  debt  on  a  penal  bill  (an  obliga- 
tion similar  to  a  bond,  but  differing  from  it  in  that 
plaintiff  was  required  to  allege  the  non-performance 
of  conditions,  instead  of  defendant  alleging  their  per- 
formance). The  condition  was  that  X  should  pay  ten 
shillings  on  June  11,  ten  shillings  on  July  10,  etc.  A 
alleges  that  X  did  not  pay  the  sums  upon  the  several 
days.  Plea,  that  X  paid  ten  shillings  on  June  11. 
Replication,  that  X  did  not  pay  it.  Demurrer.  The 
declaration  is  double ;  the  allegation  of  a  single  default 
in  payment  would  have  been  sufficient,  but  it  is  too 
late  for  X  to  take  advantage  of  this,  and,  as  the  plea 
is  bad  in  substance,  A  has  judgment.1 

§  266.  Mere  surplusage  will  not  make  a  pleading 
double. 

A  v.  X.  Action  of  trespass  quare  clausum  fregit. 
Plea,  that  X  has  right  of  common  in  the  close  for  his 
cattle,  and  that  the  trespassing  cattle  were  commonable 
cattle.  Replication  denies  (1)  that  the  cattle  were  X's 
own  cattle;  (2)  that  they  were  levant  and  couchant; 
(3)  that  they  were  commonable  cattle.  Special  de- 
murrer, for  duplicity.  The  replication  is  good;  the 
allegations  that  the  cattle  were  X's  cattle,  levant  and 
couchant,  etc.,  are  unnecessary,  as  they  are  implied  in 
the  allegation  of  commonability;  hence  the  denials  of 
them  in  the  replication  are  mere  surplusage ;  the  denial 
of  commonability  is  sufficient.2 

A  v.  X.  Action  of  debt  on  a  promissory  note.  The 
declaration  alleges  that  X  made  his  note  to  A  payable 

1  Humphreys  v.  Bethily,  2  Vent.  198,  222;  Ames'  Cases,  187. 

2  Robinson  v.  Rayley,  1  Burrow.  316;  Ames'  Cases,  188. 


170          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

March  25,  1845,  and,  the  note  falling  due,  X  promised 
to  pay  A  the  amount  on  request.  Special  demurrer  for 
duplicity.  The  latter  part  of  the  declaration  is  mere 
surplusage.  A  promise  to  do  what  one  is  already  bound 
to  do  is  void.1 

A  v.  X.  Action  of  debt.  Plea  in  abatement,  that 
the  writ  "  at  the  time  it  was  put  into  the  officer's  hands 
for  service,  and  at  the  time  when  it  was  served,  con- 
tained no  count  or  declaration."  Special  demurrer,  for 
duplicity.  The  plea  is  good;  the  first  allegation  is 
surplusage;  if  the  writ  contained  a  count  at  the  time 
it  was  served,  it  was  good.2 

§  267.  Matter  which  is  good  in  substance,  although 
pleaded  in  the  wrong  form,  will  render  a  pleading 
double. 

A  v.  X.  An  action  of  assumpsit  on  a  bill  of  ex- 
change. Plea,  that  X  was  imprisoned,  and  accepted 
the  bill  under  duress ;  that  he  never  received  any  con- 
sideration for  the  acceptance.  Special  demurrer,  for 
duplicity.  The  plea  is  double;  the  second  part  is  a 
separate  defense;  it  is  ill-pleaded,  as  it  amounts  to 
non  assumpsit.  (The  court  treated  it  thus,  and  the 
principle,  as  far  as  the  rule  against  duplicity  is  con- 
cerned, is  correct;  in  reality,  the  second  part  is  no 
defense,  as  a  bill  or  note  requires  no  consideration.)3 

§  268.  Where  a  defense  is  made  up  of  a  number 
of  separate  allegations,  each  material  to  the  defense,  a 
traverse  of  a  single  allegation,  if  sustained  by  the  proof, 
will  break  down  the  whole  defense ;  hence,  a  replication 

1  Shepherd  v.  Shepherd,  3  D.  &  L.  199 ;  Ames'  Cases,  202. 

2  Rathbone  v.  Rathbone,  5  Pick.  221 ;  Ames'  Cases,  207. 

3  Stephens  v.  Underwood,  4  Bing.  N.  C.  655;  Ames'  Cases-,  192. 


DUPLICITY.  171 

traversing  more  than  one  will  be  bad  for  duplicity. 
The  case  of  Saunders  v.  Crawley  1  presents  an  illustra- 
tion of  this. 

§  269.  Where  a  replication  de  injuria  is  pleaded 
to  a  plea  which  contains  two  distinct  defenses,  and 
which  would  clearly  be  bad  for  duplicity,  the  replication 
is  not  double;  for  it  must  be  construed  as  a  separate 
traverse  to  each  defense. 

A  v.  X.  Action  of  assumpsit  against  an  acceptor 
of  a  bill  of  exchange.  Plea,  that  X  accepted  for  the 
accommodation  of  M,  and  that,  when  the  bill  became 
due,  M  delivered  to  A  another  bill  in  payment  (which 
would  be  one  complete  defense)  ;  that  A  agreed  with 
M  not  to  sue  upon  the  bill  which  X  had  accepted. 
(Such  an  agreement  discharges  an  accommodation  ac- 
ceptor, and  would  be  a  second  defense.)  Replication, 
de  injuria.  Special  demurrer,  assigning  for  cause  that 
the  replication  is  double.  The  plea  is  clearly  double; 
but  A  replies  instead  of  demurring,  and  the  replication 
must  be  considered  as  a  separate  traverse  to  each 
defense,  and  hence  not  double.2 

1  1  Rolle,  112;  Ames'  Cases,  186;  ante,  p.  166. 

2  Reynolds  v.  Blackburn,  7  A.  &  E.  161  j  Ames'  Cases,  161. 


172          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

CHAPTER  VI. 

DEPARTURE. 

§  270.  A  departure  is  a  shifting  of  position  by 
one  of  the  parties  to  an  action  in  his  pleadings;  an 
abandonment  of  the  ground  first  taken  by  the  declara- 
tion or  plea  for  another  in  a  subsequent  pleading. 
Neither  party  is  permitted  to  depart  in  this  way  from 
the  ground  which  he  first  takes  in  his  pleading,  "  for 
this  is  to  Say  and  Unsay  which  the  law  doth  not  allow 
and  Pleas  must  be  plain  and  certain."  1  If  he  does, 
the  departure  will  be  fatal  to  his  pleading. 

A  v.  X.  Action  of  debt  on  a  bond.  The  condition 
of  the  bond  was  that  X,  the  lessee,  at  every  cutting 
of  wood,  should  make  a  fence.  Plea,  that  X  had  not 
felled  any  wood.  Replication,  that  X  felled  two  acres 
of  wood  and  did  not  make  any  fence.  Rejoinder,  that 
X  made  a  fence.  Demurrer.  The  rejoinder  is  bad, 
as  it  contains  an  entirely  different  defense  from  that 
contained  in  the  plea  and  is  a  departure  from  the  plea.2 

A  v.  X.  Action  of  debt  on  a  bond.  The  condition 
of  the  bond  was  that  X  should  save  A  harmless  from 
the  cost  of  bringing  up  a  certain  child.  Plea,  that  A 

1  Regula  Placitandi,  p.   Ill,  and  at  p.   112  the  following  suc- 
cinct rule :     "  So  such  party  must  take  heed  of  the  ordering  of 
the  matter  of  his  pleading  lest  his  Replication  vary  and  differ 
from  his  Count  or  his  Rejoinder  from  his  Bar:    For  this  is  not 
sufferable,    and    is    called    a    Departure    in    Pleading    when    the 
Second   Plea   doth   contain   matter  not   pursuant  to  the  former 
and  which  does  not  fortifie  the  same." 

2  Anon.,  Dyer,  253,  pi.  101;  Ames5  Cases,  208. 


DEPARTURE.  173 

was  not  burdened  with  such  expense.  Replication,  that 
A,  for  a  month,  provided  maintenance  for  the  child. 
Rejoinder,  that  X  offered  to  support  it,  but  A  refused 
to  let  him.  Demurrer.  The  rejoinder  is  a  departure 
from  the  plea,  and  bad  on  that  account.1 

A  v.  X.  Action  of  replevin  for  taking  goods  and 
chattels,  to  wit,  one  lime-kiln.  Avowry,  that  the  tak- 
ing was  for  rent  in  arrear.  Plea,  that  the  lime-kiln 
was  affixed  to  the  freehold,  and,  by  law,  was  exempt 
from  distress  for  rent.  Demurrer.  The  plea  is  a 
departure  from  the  declaration,  which  treated  the 
lime-kiln  as  a  chattel,  and  is  bad  on  that  account.2 

A  v.  X.  Action  of  debt  on  a  bond.  The  condition 
of  the  bond  was  performance  of  certain  covenants. 
Plea,  performance  of  the  covenants.  Replication,  that 
one  covenant  was  for  the  payment  of  rent ;  and  that 
£10  was  in  arrear  on  a  certain  day.  Rejoinder,  that  X 
tendered  the  rent  to  A,  and  A  refused  it.  Demurrer. 
The  rejoinder  is  a  departure  from  the  plea,  and  bad  on 
that  account.3 

§  271.  Departure  is  a  fault  which  may  be  taken 
advantage  of  on  general  demurrer. 

Where  the  departure  is  from  the  declaration,  i.  e., 
in  the  replication,  it  seems  proper  to  regard  it  as  a  de- 
fect in  substance;  for,  if  the  plaintiff  recovers  at  all, 
he  must  always  recover  on  the  cause  of  action  as  stated 
in  the  declaration.  When,  therefore,  he  abandons  his 
declaration  and  states  a  new  cause  of  action  in  the 
replication,  it  is  evident  judgment  cannot  be  given  for 

1  Kichards  v.  Hodges,  2  Saunders'  83 ;  Ames'  Cases,  210. 

2  Niblet  v.  Smith,  4  T.  R.  504 ;  Ames'  Cases,  214. 

3  Winchelsea  v.  Higden,  2  Barnardiston,  193;  Ames'  Cases,  213. 


174          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

him;  on  the  face  of  the  record,  he  has  abandoned  his 
declaration,  and  cannot  claim  judgment;  a  general 
demurrer  opens  up  the  whole  record,  hence  departure 
from  the  declaration  is  rightly  held  fatal  on  general 
demurrer. 

§  272.  When,  however,  the  departure  is  from  the 
plea,  i.  e.,  in  the  rejoinder,  there  seems  to  be  no  valid 
reason  for  holding  the  defendant's  pleadings  bad  on 
general  demurrer;  no  reason,  in  fact,  why  the  defend- 
ant should  not  answer  the  matter  in  the  replication  by 
a  new  defense.  However,  the  rule  is  well  settled  that, 
if  he  does,  the  rejoinder  will  be  bad  on  general  de- 
murrer, although,  if  a  defect  at  all,  it  is  obviously  but 
a  fault  in  form. 

§  273.     Where  the  declaration  is  made  up  wholly 

of  irrelevant  matter,  and  discloses  no  cause  of  action, 

a  replication  stating  a  good  cause  of  action  will  be  a 
departure. 

A  v.  X.  Action  of  assumpsit.  The  declaration 
alleges  that  X  promised  to  give  A  $100,  and  states  as 
a  breach  that  he  did  not  give  it,  but  states  no  consid- 
eration. Plea,  that  X  was  an  infant  when  he  made 
the  promise.  Replication,  that  X  made  the  promise 
in  consideration  that  A  would  furnish  him  with  meat 
and  groceries,  and  that  A  had  furnished  them.  De- 
murrer. The  replication  is  a  departure  from  the  dec- 
laration, which  showed  no  binding  promise  for  want 
of  a  consideration. 

It  is  not,  in  cases  like  the  above,  necessary  to  apply 
the  rule  against  departure.  In  fact,  it  is  scarcely  ac- 


DEPASTURE.  175 

curate  to  do  so.  There  is  really  no  departure  in  such 
a  case,  for  there  is  no  abandoning  of  a  previous  ground. 
The  true  reason  why  judgment  goes  against  the  plain- 
tiff is  that  no  cause  of  action  has  been  stated  in  his 
declaration,  and  it  is,  therefore,  bad  on  general  de- 
murrer, whether  that  demurrer  comes  after  the  decla- 
ration or  after  the  replication. 

§  274.  Where  the  declaration  is  framed  in  con- 
tract, and  the  replication  sets  forth  matter  which  might 
sustain  an  action  of  tort,  there  is  a  departure. 

A  v.  X.  Action  of  debt  for  goods  sold  and  deliv- 
ered. Plea,  that  X  was  an  infant  at  the  time  of  con- 
tracting the  debt.  Eeplication,  that  X  fraudulently 
represented  to  A  that  he  was  of  full  age,  and  thereby 
obtained  the  goods.  Demurrer.  The  replication  is  a 
departure  from  the  declaration;  it  discloses  matter  for 
an  action  of  tort.1 

§  275  .  Where  the  plaintiff  relies  upon  a  common- 
law  right,  and  the  defendant  sets  up  a  prima  facie  de- 
fense,—  e.  g.,  act  of  Parliament, —  the  plaintiff  can,  of 
course,  reply  any  matters  which  tend  to  remove  the 
defense,  and  support  his  claim  on  the  ground  taken  in 
the  declaration. 

A  v.  X.  Action  of  case.  The  declaration  alleges 
that  X  built  an  embankment  on  his  land,  which  caused 
water  to  flow  down  against  A's  house  and  damaged  it. 
Plea,  that  the  embankment  was  built  by  X  under  an 
act  of  Parliament.  Replication,  that  the  flow  of  water 
was  caused  by  the  negligent  way  in  which  the  embank- 

iBartlett  v.  Wells,  1  B.  &  S.  836;  Ames  Cases,  222. 


176          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

ment   was   built.     Demurrer.     Replication   is   no    de- 
parture.1 

§  276.  In  general,  it  may  be  said  that  where  the 
subsequent  pleading  merely  supports  and  fortifies  the 
preceding  pleading  of  the  same  party,  there  will  be  no 
departure. 

A  v.  X.  Action  of  covenant  on  an  agreement  by 
X  to  serve  A  as  an  apprentice.  Plea,  infancy.  Rep- 
lication, that  by  the  custom  of  London  infants  can  bind 
themselves  as  apprentices.  Demurrer.  There  is  no 
departure  here,  and  the  replication  is  good;  it  shows 
that  the  agreement  sued  on  is  binding.2 

A  v.  X.  Action  of  debt  on  a  bond.  The  condition 
of  the  bond  was  the  performance  of  a  covenant  to  ac- 
count to  A  for  all  moneys  received  by  X.  Plea,  cove- 
nant performed.  Replication,  that  on  a  certain  day 
£26  came  into  X's  possession,  for  which  he  has  not 
accounted.  Rejoinder,  that  certain  burglars  broke  in 
the  counting-house  and  stole  it,  and  this  X  told  A. 
Demurrer.  No  departure;  the  rejoinder  confirms  the 
statement  in  the  plea  that  X  performed  his  covenant 
to  account.3 

A  v.  X.  Action  of  debt  on  a  bond.  The  condition 
of  the  bond  was  that  X  was  to  save  A  harmless  from 
liability  to  pay  for  any  tonnage  of  coal  due  to  M.  Plea, 
that  A  was  not  damnified.  Replication,  that  M  dis- 
trained for  tonnage  due  him.  Rejoinder,  that  nothing 
was  due  M  for  tonnage.  Demurrer.  ISTo  departure ; 
if  nothing  was  in  fact  due  M,  A  was  under  no  liability 

1  Brine  v.  Great  Western  Ry.  Co.,  2  B.  &  S.  402;  Ames'  Cases, 
224. 

2  Mole  v.  Wallis,  1  Lev.  81;  Ames'  Cases,  204. 
sVere  v.  Smith,  2  Lev.  5;  Ames'  Cases,  211. 


DEPARTURE.  177 

to  pay  him,   and  the  condition  of  the  bond  was  not 
broken ;   the  rejoinder  merely  fortifies  the  plea.1 

§  277.  Where  a  party  in  a  subsequent  pleading 
changes  a  point,  which  was  immaterial  in  his  former 
pleading,  there  will  be  no  departure.  In  a  somewhat 
contradictory  form,  the  rule  has  been  stated  thus: 
Departure  from  an  immaterial  averment  is  no  depart- 
ure. The  meaning  is,  that  it  is  not  such  a  departure 
as  will  render  the  pleading  bad. 

A  v.  X.  Action  of  indebitatus  assumpsit,  for  goods 
sold  on  Jan.  16,  1706.  Plea,  statute  of  limitations, 
that  the  action  did  not  accrue  within  six  years.  Rep- 
lication, setting  forth  that  the  suit  was  commenced 
on  Jan.  23,  1713,  and  alleging  that  the  cause  of  action 
arose  within  six  years  before.  Demurrer.  There  is 
no  departure,  though  the  replication  shows  that  goods 
must  have  been  sold  on  a  different  date  from  that 
stated  in  the  declaration ;  the  allegation  of  the  exact 
date  is  immaterial.2 

A  v.  X.  Action  of  trover.  The  declaration  alleges 
that  A  was  "  lawfully  possessed  of  the  goods  as  of  his 
own  property/'  Plea,  X,  as  sheriff,  took  the  goods  in 
execution.  Replication,  that  M  deposited  the  goods 
with  A  for  repairs,  and  that  A  had  a  lien  on  them  for 
work  and  labor.  Demurrer.  No  departure.  Allega- 
tion of  property  immaterial.3 

1  Owen  v.  Reynolds,  Fortescue,  341 ;  Ames'  Cases,  213. 

2  Cole  v.  Hawkins,  1  Strange,  21 ;  Ames'  Cases,  212. 
sLegg  v.  Evans  6  M.  &  W.  36 ;  Ames'  Cases,  220. 

12 


178          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

CHAPTER  VII. 

ASSIGNMENT. 


§  278.  The  rule  which  required  a  new  assignment 
in  certain  cases  was  another  of  the  rules  of  common- 
law  pleading  directed  to  the  simplification  of  the  issues. 

Where  the  plaintiff's  declaration  was  framed  in 
terms  so  general,  that  the  defendant  might  presumably 
be  in  some  doubt  as  to  the  plaintiff's  cause  of  complaint, 
he  was  permitted  to  misconceive  (though  in  legal  con- 
templation unwittingly)  the  claim  of  the  plaintiff,  and 
to  apply  his  plea  to  a  different  matter  from  that  which 
the  plaintiff  had  in  view;  the  plaintiff  was  then  com- 
pelled to  new  assign  —  i.  e.,  state  more  definitely  his 
cause  of  complaint.  An  able  treatment  of  new  assign- 
ment will  be  found  in  Justice  Blackstone's  opinion  in 
the  case  of  Martin  v.  Kesterton.1 

§  279.  A  new  assignment  can  be  used  only  by  the 
plaintiff,  and  by  him  only  in  his  replication.  It  is  in 
the  nature  of  a  new  declaration,  stating  that  the  de- 
fendant has  not,  in  his  plea,  rightly  understood,  or 
answered  to,  the  cause  of  action  which  the  plaintiff 
meant  to  urge,  and  stating  in  more  definite  terms  just 
what  that  cause  of  action  is.  The  pleadings  then  pro- 
ceed as  if  there  had  been  no  such  misunderstanding 
between  the  parties 

i  2  Bl.  1089  ;  Ames'  Cases,  234. 


NEW    ASSIGNMENT.  179 

§  280.  A  new  assignment,  being  in  the  nature  of 
a  declaration,  does  not  in  any  sense  admit  the  matter 
stated  in  the  defendant's  plea  to  be  true,  but  merely 
passes  it  over  in  silence. 

A  v.  X.  Action  of  trespass  for  breaking  and  enter- 
ing A's  house.  Plea,  that  M  held  a  house  under  lease 
from  X;  that  a  year's  rent  was  in  arrear;  that,  to 
prevent  X  from  distraining,  M  carried  his  goods  to  A's 
house ;  that  X  entered  under  a  search  warrant.  Repli- 
cation, new  assignment  that  A  declares  for  a  trespass 
upon  another  and  different  part  of  the  day.  X  pleads 
the  same  defense  as  before.  Replication,  de  injuria. 
X  proves  that  he  entered  as  stated  in  the  plea,  but  gives 
no  proof  of  the  lease  to  M,  nor  of  rent  in  arrears,  claim- 
ing these  facts  are  admitted  by  the  new  assignment. 
X  must  prove  these  facts  the  same  as  if  there  had  been 
no  new  assignment.1 

§  281.  If  the  declaration  alleges  but  a  single  act 
on  the  part  of  the  defendant,  the  plaintiff  cannot  both 
reply  to  the  defendant's  plea  and  also  new  assign. 

A  v.  X.  Action  of  trespass  quare  clausum  fregit. 
Plea,  that  X  had  a  right  of  way  over  the  close.  Rep- 
lication, traversing  the  right  of  way  and  new  assign- 
ment, that  the  trespass  complained  of  was  extra  viam. 
Special  demurrer.  The  replication  is  bad.  "  Either 
the  plaintiff  should  not  have  traversed  or  not  new 
assigned.  It  was  at  his  option  which  to  do."  2 

§  282.  When  the  single  act  alleged  is  stated  in 
definite  terms,  so  as  to  make  it  plain  to  the  defendant 

1  Norman  v.  Westcombe,  6  L.  J.  R.  Ex.  164 ;  Ames'  Cases,  246. 

2  Spencer  v.  Bemis,  46  Vermont,  29 :   contra,  Loweth  r.  Smith, 
2  M.  &  W.  582,  per  Parke,  B. ;  Ames'  Cases,  259. 


180          PBINCIPLES    OF    COMMON-LAW    PLEADING. 

just  what  is  meant,  the  plaintiff  cannot  new  assign, 
unless  he  states  another  and  a  different  cause  of  action, 
and  that  would  be  a  departure. 

A  v.  X.  Action  of  trespass  for  stopping  A's  cart 
on  Oct.  17,  1815.  Plea,  that  A  was  wrongly  taking 
turf  from  M's  close,  and  that  X,  as  servant,  stopped 
him.  Replication,  de  injuria  and  new  assignment,  that 
the  trespass  complained  of  was  on  another  day.  New 
assignment  improper;  the  plea  answers  the  single  act 
alleged.1 

§  283.  Where  the  plaintiff  has  alleged  several  acts 
on  the  part  of  the  defendant,  and  the  defendant  in  his 
plea  has  answered  some  of  them,  but  missed  others,  the 
plaintiff  may  plead  to  those  which  the  defendant  has 
answered,  and  new  assign  as  to  the  rest. 

A  v.  X.  Action  of  trespass,  alleging  several  differ- 
ent trespasses.  Plea,  that  the  alleged  trespasses  were 
committed  in  Crable  House,  Black  Acre,  and  White 
Acre,  and  that  they  are  all  X's  freehold.  Replication, 
traversing  that  Crable  House  and  Black  Acre  are  X's 
freehold,  and  new  assignment  that  one  of  the  trespasses 
complained  of  was  committed  in  another  place  and  not 
in  White  Acre.  Demurrer.  Replication  good.2 

§  284.  Where  the  act  alleged  is  one  divisible  in 
time,  and  the  defendant  has  only  answered  to  a  part 
of  it,  the  plaintiff  may  reply  to  that  part,  and  new 
assign  as  to  the  remaining  part. 

A  v.  X.  Action  of  trespass  for  breaking  and  enter- 
ing A's  house  and  staying  four  days.  Plea,  a  justifi- 

i  Taylor  v.  Smith,  7  Taunton,  156;  Ames'  Cases,  238. 
zPrettyman  v.  Lawrence,  Cro.  Eliz.  812;  Ames'  Cases,  233. 


NEW    ASSIGNMENT.  181 

cation  by  leave  and  license  of  A  to  take  certain  goods. 
Replication,  traversing  leave  and  license  and  new  as- 
signment, that  A  declared  for  the  staying  in  for  three 
days  longer  than  was  necessary  to  take  said  goods. 
Special  demurrer.  Replication  good.1 

§  285.  Where  the  plaintiff  has  the  opportunity  to 
both  reply  and  new  assign  to  the  defendant's  plea,  if 
he  does  not  new  assign,  but  simply  takes  issue  on  the 
plea,  he  will  be  confined,  in  his  proof,  to  those  acts, 
or  that  part  of  the  act,  to  which  the  defendant  has 
correctly  pleaded. 

A  v.  X.  Action  of  trespass  for  breaking  and  enter- 
ing A's  house,  staying  therein  three  weeks,  and  carrying 
off  goods.  Plea,  (1)  not  guilty;  (2)  as  to  breaking 
and  entering  and  staying  in  twenty-four  hours,  and 
carrying  off  goods,  a  justification  under  a  writ.  Repli- 
cation, de  injuria.  X  proved  his  justification,  but  it 
appeared  he  continued  in  the  house  more  than  twenty- 
four  hours ;  and  A  claimed,  on  this  proof,  he  was  enti- 
tled to  judgment  for  the  trespass  beyond  twenty-four 
hours.  A  is  not  entitled  to  judgment;  he  should  have 
new  assigned  as  to  the  excess.2 

A  v.  X.  Action  of  debt  for  £73  for  work,  labor, 
and  materials.  Plea,  that  the  work  was  done  and  ma- 
terials provided  under  a  certain  contract ;  that  A  agreed 
to  accept  a  certain  sum  in  payment;  that  X  paid  it. 
Replication,  traversing  that  A  received  the  sum  of 
money  in  full  payment,  as  in  the  plea  mentioned.  A 
wishes  to  give  evidence  of  extra  work  outside  of  the 
contract.  A  cannot  do  it,  he  should  have  new  assigned.3 

iLoweth  v.  Smith,  12  M.  &  W.  582;  Ames'  Cases,  257. 

2  Monprivatt  v.  Smith,  2  Campbell,  175;  Ames'  Cases,  235. 

3  Rogers  v.  distance,  1  Q.  B.  77;  Ames'  Cases,  251. 


182          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

§  286.  Wherever  issue  is  taken  upon  the  plea,  if 
the  defendant  can  prove  it  as  he  meant  it,  even  though 
the  plaintiff  had  an  entirely  different  idea,  the  proof 
will  be  sufficient  to  support  the  plea,  and  the  plaintiff 
will  not  be  allowed  to  show  that  the  plea  is  no  answer 
to  what  he  meant  in  his  declaration,  for  in  such  case 
he  should  have  new  assigned. 

A  v.  X.  Action  of  trespass  for  breaking  and  enter- 
ing A's  close,  called  the  Fold-yard.  Plea,  that  said 
close  is  X's  freehold.  Replication,  traversing  the  plea. 
It  appeared  that  A  had  a  close  called  Fold-yard,  and 
that  a  trespass  had  been  committed  therein,  and  that 
X  also  had  a  close  called  Fold-yard  in  the  same  parish. 
X  should  have  judgment,  for  he  has  proved  his  plea. 
Held  contra,  but  decision  seems  wrong  on  principle.1 

A  v.  X.  Action  of  debt  for  £10  for  goods  sold  and 
delivered,  and  £10  for  work  and  labor.  Plea,  that  X 
paid  A  a  large  sum  of  money  in  full  satisfaction  of  the 
debt.  Replication,  traversing  the  plea.  X  proves  a 
payment  of  a  sum  larger  than  the  debt  claimed,  but  A 
shows  that  the  work  amounted  to  more  than  was  paid, 
and  there  is  a  balance  due.  X  is  entitled  to  judgment ; 
he  has  proved  payment  of  the  debt  to  which  he  applied 
his  plea.  Decision  contra,,  but  erroneous.2 

A  v.  X.  Action  of  trespass  for  breaking  and  enter- 
ing A's  close  and  tearing  down  his  fences.  Plea,  that 
there  was  a  public  foot-path  over  the  close;  that  A 
obstructed  it,  and  X  pulled  down  the  obstruction. 
Replication,  traversing  the  plea.  X  proves  public  way 

1  Cocker  v.  Crompton,  1  B.  &  C.  489 ;  Ames'  Cases,  239. 

2  Freeman  v.  Crafts,  4  M.  &  W.  4;  Ames'  Cases,  250;  but  see 
Austin  v.   Morse,   8   Wend.   476;    Ellet  v.  Pullen,   7   Halst.   357; 
Collum  v.  Andrews,  6  Watts,  516;  Palmer  v.  Tuttle,  39  N.  H.  488. 


NEW   ASSIGNMENT.  183 

over  the  land  from  east  to  west.  A  admitted  such  foot- 
path, but  offered  to  prove  X  went  over  the  land  in  a 
different  way:  to  do  this  A  should  have  new  assigned. 
X  has  proved  his  plea  and  is  entitled  to  judgment.1 

§  287.  The  case  of  Monkman  v.  Shepherdson  2  in- 
volves a  consideration  of  both  the  rule  as  to  duplicity 
and  the  rule  as  to  new  assignment.  A  declared  in  debt 
against  X  for  £10  for  wages.  X  pleaded  that  A  had 
forfeited  his  wages,  according  to  the  agreement  be- 
tween them,  by  voluntarily  becoming  drunk.  A  replied 
that  X  had  discharged  him  from  such  forfeiture,  and 
new  assigned  that  £7  of  the  £10  became  due  after  said 
drunkenness.  There  was  a  special  demurrer  for  du- 
plicity. Held,  that  the  replication  was  good,  the  new 
assignment  being  proper.  It  would  seem,  however, 
that  the  new  assignment  amounts  simply  to  a  traverse, 
as  to  £7,  of  the  forfeiture  mentioned  in  the  plea,  and 
hence  is  bad  in  form;  but  since  the  replication  of  dis- 
charge must  be  construed  as  applying  only  to  the  re- 
maining £3,  there  is  no  duplicity  in  the  replication. 

iHuddart  v.  Rigby,  5  L.  R.  Q.  B.  139;  Ames'  Cases,  260. 
2  11  A.  &  E.  411;  Ames'  Cases,  255. 


184          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

CHAPAEK   VIII. 

MOTIONS    BASED   ON   THE   PLEADINGS. 

SECTION  I. —  ARREST  OF  JUDGMENT. 

§  288.  It  often  happens  that  a  verdict  is  found 
for  the  plaintiff  on  pleadings  which  the  defendant 
thinks  insufficient  in  substance.  It  being  too  late  to 
bring  the  question  of  their  validity  before  the  court 
by  demurrer,  the  means  adopted  by  the  defendant  to 
accomplish  the  same  object  is  what  is  known  as  a  mo- 
tion in  arrest  of  judgment.  Like  a  demurrer,  such  a 
motion  opens  the  whole  record;  and,  if  it  appears  on 
its  face  that  the  pleadings  of  the  plaintiff  are  bad  in 
substance,  judgment  will  be  arrested. 

A  v.  X.  A  alleges  in  his  declaration  that  X  prom- 
ised to  sell  and  deliver  to  A  266  hogsheads  of  tobacco 
at  a  certain  price  if  A  would  agree  to  purchase  them 
and  would  give  notice  thereof  to  the  defendant  before 
the  hour  of  four  in  the  afternoon;  that  A  did  agree  to 
purchase  and  gave  notice  before  four  o'clock.  After 
verdict  for  A,  X  moved  in  arrest  of  judgment  on  the 
ground  the  declaration  stated  no  consideration.  The 
declaration  is  bad  in  substance,  as  the  promise  alleged 
as  the  consideration  is  subsequent  in  time  to  the  promise 
of  X,  and  judgment  will  be  arrested.1 

§  289.  Where  a  defect  in  substance  is  cured  by 
allegations  in  the  answering  pleading,  the  action  of  the 

i  Cooke  v.  Oxley,  3  D.  &  E.  653 ;  Livingston  v.  Rogers,  1  Caines, 
583. 


MOTIONS    BASED    ON    THE    PLEADINGS.  185 

court  will  be  the  same  on  motion  in  arrest  of  judgment 
as  it  would  be  on  demurrer  —  i.  e.,  it  will  refuse  to 
allow  advantage  to  be  taken  of  the  defect,  and  judgment 
will  not  be  arrested. 

A  v.  X.  Action  of  trespass.  The  declaration  al- 
leges the  taking  of  a  hook,  but  does  not  say  A's  hook, 
nor  that  it  was  in  A's  possession.  Plea,  that  X  had 
a  right  of  way  over  A's  land ;  that  he  was  passing 
there,  and  took  the  hook  out  of  A's  hands  to  prevent 
A  from  injuring  him.  Replication,  traverse  of  the 
right  of  way.  Issue  joined,  ^rerdict  for  A.  Judg- 
ment will  not  be  arrested,  for  the  omission  to  allege 
possession  is  cured  by  the  allegation  in  the  plea.1 

§  290.  Formerly,  it  was  customary  to  arrest  judg- 
ment on  a  merely  formal  defect ;  but,  since  the  various 
statutes,  known  as  statutes  of  jeofails,  some  error  in 
substance  must  appear. 

When  judgment  is  arrested,  the  case  stops  where  it 
is,  each  party  pays  his  own  costs,  and  the  plaintiff,  if 
he  wishes  to  prosecute  the  suit,  must  begin  anew. 

§  291.  Where  the  declaration  contains  several 
counts,  some  of  which  are  bad  in  substance,  while 
others  present  a  sufficient  cause  of  action,  and  the  jury 
give  a  general  verdict,  with  general  damages,  for  the 
plaintiff,  a  motion  in  arrest  of  judgment  will  not  be 
granted.  In  such  case  the  plaintiff  is  entitled  to  judg- 
ment on  the  good  counts,  and  the  error  is  one  that  the 
jury  have  made  in  not  specifying  upon  what  counts 
the  verdict  was  given.  It  is  not  just,  therefore,  to 

i  Brooke  v.  Brooke,  Siderfin,  184;  Ames'  Cases,  266. 


186          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

compel  the  plaintiff  to  begin  his  suit  anew.  A  venire 
de  novo,  which  simply  summons  a  new  jury,  will, 
however,  be  awarded.1 

§  292.  Where  the  plaintiff  in  his  replication  trav- 
erses an  immaterial  point  in  the  plea,  and,  upon  issue 
being  taken  thereon,  obtains  a  verdict,  judgment  will 
not  be  arrested,  but  a  repleader  will  be  awarded. 

There  is  no  reason,  on  principle,  why,  in  such  a 
case,  judgment  should  not  be  arrested.  The  reason 
given  is  that  the  plaintiff  may  have  a  better  answer 
to  the  plea,  and  ought  to  have  a  chance  to  bring  it 
forward.  But,  if  the  traverse  had  been  demurred  to, 
judgment  would  have  been  given  for  the  defendant 
without  regard  to  any  better  answer  which  the  plain- 
tiff might  have ;  and  why,  in  the  case  of  arrest  of  judg- 
ment, should  such  a  consideration  come  in  ?  The  fact 
that  the  plaintiff  did  not  bring  forward  a  better  answer 
to  the  plea  is,  in  the  eyes  of  the  law,  a  sufficient 
acknowledgment  that  he  has  none. 

A  v.  X.  Action  of  assumpsit  for  money  had  and 
received.  Plea,  that  A  and  M  were  partners ;  that 
with  A's  consent  M  dealt  with  certain  goods  as  his  own 
property ;  that  the  goods  were  left  with  X  to  be  sold ; 
that  it  was  agreed  between  M  and  X  that  X,  out  of  the 
proceeds,  should  reimburse  himself  for  money  lent  to 
M.  Replication,  traversing  that  A  permitted  M  to  deal 
with  the  property  as  his  own.  Issue  joined.  Verdict 
for  A.  Though  the  issue  is  immaterial,  judgment  will 
not  be  arrested,  but  a  repleader  awarded.2 

1  Leach  v.  Thomas,  2  M.  &  W.  427;  Amos'  Cases,  266. 

2  Gordon  v.  Ellis,  7  M.  &  G.  607;  Ames'  Cases,  268. 


MOTIONS    BASED    ON    THE    PLEADINGS.  187 

§  293.  In  general,  errors  in  form  are  no  ground 
for  arresting  judgment.  There  is  one  case,  however, 
which  stands  upon  a  peculiar  footing.  This  is  the 
action  of  debt  on  a  bond  conditioned  for  the  perform- 
'  ance  of  an  award.  Where  the  plea  is  in  excuse,  "  No 
award  made,"  and  the  replication  sets  forth  an  award, 
but  assigns  no  breach,  the  replication  is  defective.1 
It  has  been  shown  that  the  assignment  of  a  breach  is 
necessary  in  the  replication.  Now,  whether  it  be  said 
that  its  omission  is  a  defect  in  substance,  or  merely  in 
form,  it  certainly  can  be  taken  advantage  of  on  a  motion 
in  arrest  of  judgment.  If  it  be  regarded  as  an  error 
in  substance,  it  causes  no  exception  to  the  rule  that 
judgment  will  be  arrested  only  for  an  error  in  sub- 
stance ;  but  it  certainly  is  rather  an  anomalous  state  of 
affairs  to  say  that  an  allegation  which  cannot  be  trav- 
ersed is  matter  of  substance.  If  it  be  regarded  as  an 
error  in  form,  it  causes  a  most  striking  exception  to 
the  rule  above  stated. 

SECTION  II. —  NON-OBSTANTE  VEREDICTO. 

§  294.  Where  a  party  thinks  that,  on  the  plead- 
ings, he  is  entitled  to  immediate  judgment,  though  a 
verdict  has  been  given  for  his  opponent,  he  moves  for 
judgment  non-obstante  veredicto  (notwithstanding  the 
verdict). 

§  295.  The  cases  show  the  motion  to  have  been 
made  almost  universally  by  the  plaintiff;  but  it  is 

i  Barrett  v.  Fletcher,  Cro.  Jac.  220;  Ames'  Cases,  265. 


188  PRINCIPLES    OF    COMMON-LAW    PLEADING. 

probable  that  either  party  may  obtain  judgment  nonr 
obstante.1  There  certainly  seems  to  be  no  good  reason 
why,  if  the  defendant  has  set  forth  a  good  defense,  and 
the  plaintiff's  replication  confesses,  but  does  not  avoid 
it,  he  should  not  have  judgment  non-obstante.  If 
either  party  may  have  judgment  non-obstante,  there 
seems  to  be  no  occasion  for  the  motion  in  arrest  of 
judgment;  for  the  defendant  has  a  much  better 
expedient  in  the  motion  for  judgment  non-obstante. 

§  296.  The  idea  which  gave  rise  to  this  motion 
was  that,  where  the  defendant  confessed  the  plaintiff's 
cause  of  action,  and  gave  no  sufficient  avoidance,  there, 
whatever  immaterial  issue  may  have  been  joined  and 
found  for  the  defendant,  the  plaintiff  was  entitled  in 
justice  to  the  judgment. 

A  v.  X.  Action  of  case  for  slander.  Plea,  con- 
fesses the  speaking  of  the  words,  and  alleges  an  insuf- 
ficient excuse.  Replication,  traverses  the  excuse. 
Verdict  for  A.  X  moves  for  an  arrest  of  judgment. 
Though  the  traverse  is  immaterial,  judgment  will  not 
be  arrested,  but  will  be  for  A  on  the  confession  in  X's 
plea.2 

§  297.  The  motion  was  originally  granted  only 
where  the  defendant  expressly  confessed,  in  the  plea 
upon  which  the  plaintiff  sought  judgment  non-obstante, 
the  plaintiff's  cause  of  action,  and  gave  no  good 
avoidance. 

1  14  Am.  L.  R.  494. 

2  Lacy  v.  Reynolds,  Cro.  Eliz.  214;  Ames'  Cases,  275. 


MOTIONS    BASED    ON    THE    PLEADINGS.  189 

A  v.  X.  Action  of  assumpsit  on  a  promissory  note. 
Declaration  alleges  X  made  the  note,  and  delivered  it 
to  M;  that  it  was  forfeited  to  the  king;  and  that  the 
king  gave  it  to  A.  Plea,  that  the  said  note  became 
due  in  M's  hands,  and  the  cause  of  action  did  not 
accrue  within  the  six  years  next  before  the  bringing 
of  the  action.  Replication,  traversing  the  plea.  Ver- 
dict for  X.  A  is  entitled  to  judgment  non-obstante 
veredicto.  The  king  is  not  subject  to  the  statute  of 
limitations,  and  X  has  not  alleged  that  six  years  have 
expired,  exclusive  of  the  time  the  king  held  the  note.1 

§  298.  The  scope  of  the  motion  was  gradually 
extended  to  embrace  those  cases  where  the  defendant, 
in  any  one  of  his  pleas,  confessed  the  cause  of  action, 
though  there  was  no  express  confession  in  the  plea  upon 
which  verdict  had  been  given  for  the  defendant,  and 
upon  which  the  plaintiff  sought  judgment  non-obstante. 

A  v.  X.  Action  of  case  for  libel.  X  pleads  several 
pleas  setting  up  the  truth  as  a  justification.  Replica' 
tion,  de  injuria.  Verdict  for  A  on  one  plea  and  for 
X  on  the  rest,  but  the  issues  on  the  latter  were  imma- 
terial. Though  some  of  the  pleas  did  not  confess  the 
cause  of  action,  A  is  entitled  to  judgment  non-obstante 
upon  these  pleas,  since  the  plea  which  raised  a  material 
issue  and  upon  which  verdict  was  in  his  favor  was  a 
sufficient  confession.2 

§  299.  Then  to  cases  where  the  plaintiff  had  ob- 
tained the  verdict  on  some  material  traverse,  while  the 
defendant  had  succeeded  on  the  immaterial  issue. 

1  Lambert  v.  Taylor,  4  B.  &  C.   138;  Ames'  Cases,  276.     See, 
also,  Filliene  v.  Armstrong,  7  A.  &  E.  557. 

2  Goodburne  v.  Bowman,  9  Bing.  532;  Ames'  Cases,  278. 


190          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

A  v.  X.  Action  of  case  for  disobedience  to  a  sub' 
poena,  refusing  to  appear  as  a  witness  in  A's  behalf. 
Plea,  several  traverses  of  material  matter  upon  which 
A  had  a  verdict,  and  a  traverse  that  A  had  a  good  cause 
of  action  (conclusion  of  law),  upon  which  X  had  a 
verdict.  A  is  entitled  to  judgment  non-obstante.1 

§  300.  On  principle,  the  courts  should  have  gone 
one  step  farther,  and  given  judgment  non-obstante 
veredicto,  where  there  was  a  single  immaterial  traverse 
to  the  declaration  upon  which  the  defendant  had  ob- 
tained a  verdict;  for,  what  a  party  does  not  deny,  he 
admits;  and  therefore,  on  the  face  of  the  pleadings, 
the  action  stands  confessed,  with  no  good  avoidance. 
But  the  courts  refused  to  take  this  final  step.2 

SECTION  III. —  REPLEADER. 

§  301.  Where  the  parties  proceeded  to  trial  upon 
some  immaterial  point  raised  by  the  form  of  the  plead- 
ings, and  a  verdict  of  the  jury  upon  such  point  was  had, 
the  court  was  unable  to  award  judgment  for  either 
party.  The  merits  of  the  controversy  were  still  unde- 
termined. To  remedy  the  situation  the  court  awarded 
what  was  called  a  repleader.3 

1  Couling  v.  Coxe,  6  D.  &  L.  399 ;  Ames'  Cases,  283. 

2  Duke  of  Rutland  v.  Bagshawe,  19  L.  J.  E.  Q.  B.  284;  Ames' 
Cases,  286. 

3  Euer,  System  of  Pleading,  413.     "  For   if  by  misconduct  or 
inadvertance  of  the  pleaders  the  issue  be  joined  on  a  fact  totally 
immaterial    or   insufficient   to   determine   the   right,    so   that   the 
court,  upon  finding,  cannot  know  for  whom  judgment  ought  to 
be  given." 


MOTIONS    BASED    ON    THE    PLEADINGS.  191 

A  v.  X,  as  executor.  Assumpsit.  A  alleges  the 
testator  promised,  etc.  X  pleads  that  he  (the  executor) 
made  no  such  promise.  On  issue  joined,  the  verdict  is 
for  X.  Repleader  will  be  awarded,  as  the  verdict  is 
upon  an  immaterial  issue.1 

§  302.  Either  party  may  move  that  a  repleader  be 
awarded,  or  the  court  may  award  it  without  motion. 
If  awarded,  its  effect  is  to  compel  the  parties  to  begin 
their  pleadings  anew  at  the  stage  where  the  first  imma- 
terial pleading  was  placed  on  the  record,  and  each 
party  pays  his  own  costs.2  A  repleader  will  be 
awarded  only  after  verdict,  and  then  ony  in  certain 
cases  where  the  parties  have  gone  to  trial  on  an  imma- 
terial issue;  i.  e.,  not  in  all  cases  of  immaterial  issue. 
Two  further  illustrations  may  be  given  where  the  relief 
was  considered  proper. 

A.  v.  X.  Action  of  debt  for  rent.  Plea,  that  before 
the  rent  became  due  X  assigned  the  term  to  M,  of 
which  A  had  notice.  Replication,  traversing  notice. 
Verdict  for  X.  Repleader  awarded.  The  issue  of 
notice  is  immaterial.  Nothing  discharges  X  except  an 
agreement  by  A  to  the  assignment.  It  would  seem  that 
A  was  entitled  to  judgment  non-obstante  veredicto  had 
he  moved  it,  unless  the  plea  stated  such  agreement.3 

A  v.  X.  Action  in  a  bond  conditioned  for  the  pay- 
ment of  money  on  or  before  December  5th.  X  pleads 
payment  on  December  5th.  Replication  traversing 
that  the  money  was  "  paid  on  that  day."  \rerdict  for 

1  Anonymous,  2  Vent.  196. 

2  Staple  v.  Heydon,  Modern,  1 ;  Ames'  Cases,  293. 

a  Sergeant  v.  Fairfax,  1  Lev.  32;  Ames'  Cases,  290;  Witts  v. 
Poleham-pton,  3  Salk.  305;  Ames*  Cases,  292. 


192          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

A.  Repleader  awarded  because  the  issue  was  imma- 
terial. Payment  before  the  day  would  have  been  a 
performance  of  the  condition.1 

§  302.  When  it  is  said  that  repleader  will  not  be 
awarded  in  every  case  of  immaterial  issue,  it  is  meant, 
to  quote  from  Lord  Mansfield's  opinion,  "  that  when 
the  finding  upon  it  does  not  determine  the  right  the 
court  ought  to  award  a  repleader,  unless  it  appears  from 
the  whole  record  that  no  manner  of  pleading  the  matter 
could  have  availed."  2 

§  303.  The  courts  will  be  very  sure  that  the  issue 
is  immaterial  before  awarding  a  repleader. 

A  v.  X.  Action  of  trespass  quare  elausum  fregit, 
and  for  taking  three  cows.  Plea,  that  X  leased  the 
close  to  M,  and  entered  and  took  the  cows  as  a  distress 
for  rent  in  arrear.  Replication,  traversing  that  the 
cows  were  levant  and  couchant.  Verdict  for  A.  A 
repleader  will  not  be  granted,  for  levancy  and  cou- 
chancy  might  be  material  if  X  chased  the  cows  on  to 
the  land  liable  to  his  distress,  for  then  he  could  only 
take  them  damage-feasant,  and  levancy  and  couchancy 
would  be  material.3 

§  304.  It  is  difficult  to  understand  what  occasion 
either  party  had  for  moving  for  a  repleader,  since  it 
would  seem  (on  principle,  at  least)  that  a  better  expe- 
dient was  always  open  to  him.  The  following  analysis 
will  illustrate  what  is  meant : 

1  Tryon  v.  Carter,  2  Strange,  994. 

2  Rex  v.  Phillips,  1  Burrows,  293,  at  p.  301. 
sKempe  v.  Crews,  1  Ld.  Rind.  167;  Ames'  Cases,  291. 


MOTIONS    BASED    ON    THE    PLEADINGS.  193 

Action  of  assumpsit  by  A  v.  X. 

(I).  Suppose  the  declaration  states  no  valid  cause 
of  action;  that  the  plea  is  an  immaterial  traverse; 
and  that  — 

(a).  Verdict  is  for  A.  X  may  then  have  an  arrest 
of  judgment,  and  there  is  certainly  no  occasion  for  a 
repleader. 

(6).  Verdict  is  for  X.  X  then  is  entitled  to  judg- 
ment on  the  verdict.  A  can  have  nothing,  for  on  the 
face  of  the  pleadings  no  cause  of  action  appears. 

(II.).  Suppose  the  declaration  states  a  valid  cause 
of  action ;  that  — 

(1).  The  plea  is  an  immaterial  traverse,  and  that  — 
*(a).  Verdict  is  for  A.     Then,  on  principle,   A 

should  have  judgment  on  the  verdict. 
(6).  Verdict   is  for  X.     Then,   on   principle,   A 
should   have   judgment  non-obstante   veredicto: 
but  such  is  not  the  law,  and  here  seems  to  be 
the  first  occasion  for  a  repleader. 
(2).  The  plea  confesses  but  does  not  avoid  the  cause 
of  action;    that  the  replication  is  an  immaterial  trav- 
(a).  Verdict  is  for  A.     Then  A  is  entitled  to  judg- 
ment on  the  verdict,  for  even  if  — 
erse ;  and  that  — 

(&).  Verdict  is  for  X,  A  can  have  judgment  non- 
obstante  veredicto.  Hence,  there  is  no  occasion 
for  a  repleader  here. 

(3).  The  plea  confesses  and  avoids  the  cause  of  ac- 
tion;   that  the  replication  is  an  immaterial  traverse, 
and  that  — 
13 


194          PRINCIPLES    OF    COMMON-LAW    PLEADING. 

(a).  Verdict  is  for  A.  Then,  on  principle,  X 
should  have  judgment  non-obstante  veredicto, 
and  may,  at  least,  have  an  arrest  of  judgment. 

*(&).  Verdict  is  for  X.  Then,  certainly,  X  should 
have  judgment  on  the  verdict. 

There  seems  to  be  but  one  case,  then,  where  a  re- 
pleader  is  appropriate,  and  that  simply  because  the 
courts  have  refused  to  go  as  far  as  they,  on  principle, 
might  have  gone  in  the  giving  of  judgment  non-obstante 
veredicto.  If  we  adopt  Chief  Justice  Tindal's  view 
that  "  a  repleader  is  rather  the  act  of  the  court,  where 
it  sees  that  justice  cannot  be  done  without  adopting 
that  course,"  1  we  can  easily  conceive  of  the  courts,  in 
two  other  cases  (see  starred  cases  above),  awarding  a 
repleader  on  the  ground  that  the  party  may  have  a 
better  defense. 

i  Gordon  v.  Ellis,  7  M.  &  G.  607. 


INDEX. 

[References  are  to  pages.] 


ABATEMENT,  PLEA  IN,  96. 
ABSQUE  HOC  CLAUSE,  155. 
ACQUIRED  RIGHTS,  as  basia  of  recovery,  11. 

ACTIONS,  based  on  acquired  rights,  6,  11. 
based  on  natural  rights,  6. 
definition  of,  6. 
different  forms  of,  5. 

distinction  between  personal  and  mixed,  7. 
natural  classification  of,  6. 
theory  of  recovery  in,  6. 
real,  personal,  and  mixed,  6. 

ACTION  OF  CASE.     See  CASE. 

ARREST  OF  JUDGMENT  granted  only  for  defects  in  substance, 

185. 

object  of  motion  in,  184. 
when  motion  will  not  be  granted,  186. 

ASSUMPSIT,  basis  of  recovery  in,  13. 

AVOWRY,  like  a  declaration,  53. 
necessary  allegation   in,  57. 

BANKRUPTCY,  PLEA  OF,  106. 

BREACH,  statement  of,  in  debt,  18. 

statement  of,  in  special  assumpsit,  26. 

CASE,  basis  of  recovery  in  atcion  of,  32. 
common-law  form  of  action,  5. 
contributory  negligence,  how  pleaded,  122. 

(195) 


196  INDEX. 

[References  are  to  pages.] 

CASE — continued. 

for  injury  to  person,  necessary  allegations  in  declara- 
tion, 62. 

for  injury  to  property,  necessary  allegations  in  declara- 
tion, 63. 

for  what  wrongful  acts  it  is  a  remedy,  61. 

general  issue  in,  149. 

meaning  of  inducement  in  declaration  in,  120. 

nature  of  relief  in,  33. 

plea  in  excuse  in,  120-124. 

reasonable  and  probable  cause,  liow  pleaded  in  action  for 
malicious  prosecution,  122. 

statutory  origin  of,  59. 

truth,  how  pleaded,  in  action  of  libel,  121. 

specific  traverses  in,  152. 

what  is  put  in  issue  by  not  guilty,  152,  153. 

COGNIZANCE.     See  AVOWBY. 

COMMON  COUNTS.     See  GENERAL  ASSUMPSIT. 

CONFESSION    AND    AVOIDANCE,     PLEAS    BY     WAY     Ol 

example  of,  103. 
in  discharge,   105. 
in  excuse,  106. 
nature  of,  102. 

nature  of  confession  necessary,  103,  104. 
verification  of,  103. 

CONSIDERATION,  as  the  basis  of  recovery  in  actions,  21,  24 

CONTRACT,  action  for  breach  of,  23. 
bilateral,  25. 
unilateral,  25. 

CONVERSION.     See  TBOVEB. 
acts  of,  what  are,  41-43. 
use  of  word,  40. 

COVENANT,  basis  of  recovery  in,  11. 
common-law  form  of  action,  5. 
nature  and  origin  of  action  of,  21. 
necessary  allegations  in  declaration  in,  22,  23. 


INDEX.  197 

[References  are  to  pages."] 

DEBT,  action  in,  for  money  lent,  money  paid,  etc.,  16. 
basis  of  recovery  in,  11,  14. 
common-law  form  of  action,  5. 
credit,  how  pleaded,  112,  139. 
demand  for  damages  in,  15. 

distinguishing  feature  of  on  simple  contract,  16. 
detention  the  essence  of  the  action,  14. 
general  issue  in,  139. 
meaning  of  word,  14. 

necessary  allegation  in  declaration  in,  15. 
on  simple  contract,  16. 
on  records,  17. 
on  specialties,  17. 
on  statutes,  18. 

payment  on  delivery,  how  pleaded,  139. 
plea  in  excuse  in,  111,  112. 
specific  traverses  in,  139. 
statement  of  breach  in  declaration,  18. 

DECLARATION,  bad  for  duplicity,  example  of,  165. 
example  of,  9. 
first  pleading,  2. 

in  case,  necessary  allegation  in,  62,  63. 
in  covenant,  necessary  allegation  in,  22. 
in  debt,  necessary  allegation  in,  15. 
in  detinue,  necessary  allegation  in,  20. 
in  ejectment,  necessary  allegation  in,  68. 
in  general  assumpsit,  29,  30. 
in  replevin,  56. 
in  special  assumpsit,  24,  25. 
in  trespass,  34,  35. 
in  trover,  43. 
office  of,  7. 
pledges  in,  10. 
profert  in,  9. 

statement  of  damages  in,  9. 
statement  of  right  and  wrong  in,  7. 
technical  rules  relating  to,  8. 

DEMAND  AND  REFUSAL,  in  trover,  44. 


198  INDEX. 

[References  are  to  pages.] 

DEMURRER,  a  method  of  answering  a  pleading,  69. 
distinguished  from  a  plea,  75. 
effect  of,  71. 

effect  of,  in  opening  the  record,  87-93. 
effect  of,  where  there  are  two  separate  records,  89. 
form  of,  72. 
general  demurrer,  76. 
how  changed  by  statute,  73. 
joinder  in,  72. 
judgment  on  final,  74. 

pleadings  examined  for  defects  in  substance  only,  88. 
special  demurrer,  73,  83. 
to  plea  in  abatement,  judgment  on,  77. 
to  the  evidence,  73. 
•when  will  not  open  record,  91. 

DEPARTURE,  change  in  immaterial  matter  not  a,  177. 
in  rejoinder,  from  plea,  174. 
in  replication,  from  declaration,  175. 
matters  fortifying  pleading  not  a,  176. 

replication   in   tort   a  departure   from   declaration   in   con- 
tract, 175. 

statement  of  rule  against,  172. 
taken  advantage  of  by  general  demurrer,  173. 

DETINUE,  basis  of  recovery  in,  12. 
brought  upon  a  contract,  13. 
common-law  form  of  action,  5. 
general  issue  in,  146. 
lien,  how  pleaded,  118,  146. 
nature  of  detention  in,  12,  117. 
nature  of  recovery  in,  20. 
necessary  allegation  in  declaration  in,  20. 
objects  of  action  of,  19. 
offer  to  return  goods,  how  pleaded,  118. 
plea  in  excuse  in,  117,  118. 
specific  traverses  in,  146. 

DILATORY  PLEAS,  classification  of,  95,  100. 
common  grounds  of,  100. 
effect  of,  95. 


199 


[References  are  to  pages.] 

DILATORY  PLEAS—  continued. 
example  of,  101. 

nature  of  judgment  upon  demurrer  to,  98. 
use  of,  98. 

DISTRESS,  meaning  of  word,  45. 

replevin,  the  remedy  for  illegal,  45. 
the  successor  of  forfeiture,  45. 

DUPLICITY,  a  defect  in  form,  168. 

apparent  exceptions  to  rule  against,  158,  167,  168. 

in  the  declaration  166. 

in  the  plea,  166,  170. 

in  the  replication,  166. 

not  caused  by  surplusage,  169. 

not  prevented  because  matter  ill  pleaded,  170. 

replication  de  injuria  not  double  because  plea  double,  171. 

statement  of  rule  against,  165. 

EJECTMENT,  use  of,  to  redress  what  wrongs,  32. 
common-law  form  of  action,  5. 

development  of,  for  purpose  of  trial  of  title,  64-67. 
how  title  called  in  question  in,  65. 
nature  of  relief  in,  33. 

necessary  allegations  in  declaration  in,  68. 
nature  of  wrongful  act  complained  of,  65. 
origin  of,  64. 
plea  in  excuse  in,  124. 

EXCUSE,  PLEAS  IN,  106. 

FORM  OF  ACTION,  declaration  determines,  2. 
different  forms,  development  of,  4. 
treated  in  connection  with  declaration,  3. 

GENERAL  ASSUMPSIT,  basis  of  recovery  in,  13,  27. 
common-law  forms  of  action,  5. 
credit,  how  pleaded,  110,  137. 
denial  of  breach,  how  pleaded,  138. 
different  counts  in,  28. 
examples  of  declarations  in,  30,  31. 
general  issue  in,  133. 


200  INDEX. 

[References  a/re  to  pages.] 
GENERAL  ASSUMPSIT — continued, 
indebitatus  assumpsit,  28. 
money  counts,  28. 

necessary  allegations  in  declaration  in,  29. 
pleas  in  excuse  in,  109-111. 
quantum  meruit,  28,  29. 
quantum  valebant,  28,  29. 
special  contract,  how  pleaded,  137. 
specific  traverses  in,  138. 

GENERAL   DEMURRER,    as   an   admission    of    facts    stated    in 

pleading,  78-83. 
effect  of  in  early  times,  76. 
effect  of  to  plea  in  abatement,  77. 
how  changed  by  statute,  76,  77. 

GENERAL  ISSUE,  in  case,  149. 

in  debt,  139. 

in  detinue,  146. 

in  general  assumpsit,  137. 

in  replevin,  147. 

in  special  assumpsit,  134. 

in  trespass,  140. 

in  trover,  143. 

meaning  of  term,  133. 

INDEBITATUS  ASSUMPSIT,  28. 

INDUCEMENT,  as  part  of  declaration  in  case,  149. 
as  part  of  declaration  in  trespass,  142. 
as  part  of  declaration  in  trover,  144. 
as  part  of  special  traverse,  154. 

LIBERUM  TENEMENTUM,  114. 

MIXED  ACTIONS,  7. 

MONEY  COUNTS,  28. 

MOTIONS  BASED  ON  PLEADINGS,  184. 

NATURAL  RIGHTS  AS  BASIS  OF  ACTIONS,  32. 


INDEX.  201 

[References  are  to  pages.} 

NEW  ASSIGNMENT,  effect  of  failure  to  new  assign,  181,  182. 
not  an  admission  of  the  plea,  179. 
only  available  to  plaintiff,  178. 
statement  of  rule  as  to,  168,  178. 
when  plaintiff  may  both  plead  and  new  assign,  180. 
when  the  plaintiff  cannot  new  assign,  179,  180. 

NIL  DEBET,  PLEA  OF,  139. 

NUNQUAM  INDEBITATUS,  PLEA  OF,  139. 

NOT  GUILTY,  PLEA  OF,  in  case,  149. 
in  trespass,  140. 
in  trover,  143. 

NON  ASSUMPSIT,  PLEA  OF,  in  general  assumpsit,  137. 
in  special  assumpsit,  134. 

NON  DETINET,  PLEA  OF,  146. 
NON  CEPIT,  PLEA  OF,  147. 

NON-OBSTANTE  VEREDICTO,  nature  and  use  of  motion,  187 
when  granted,   188,  189. 

NOT  POSSESSED,  PLEA  OF.  in  detinue,  146. 
in  trespass,  141. 
in  trover,  144. 

OYER,  9. 

PAYMENT,  PLEA  OF,  105. 

PERSONAL  ACTIONS,  6-7. 

PLEA,  a  method  of  answering  the  declaration,  70. 
by  way  of  confession  and  avoidance,  102-124. 
by  way  of  traverse,  125-164. 
in  abatement,  96. 
in  bar,  102. 
in  discharge,  105. 
in  excuse,  106. 
in  suspension,  96. 
to  jurisdiction,  95. 


202  INDEX. 

[References  are  to  pages.] 

PLEADINGS,  definition,  1. 

subsequent  to  the  declaration,  69. 

PLEDGES,  10. 

POSSESSION,  nature  of  the,  to  support  trespass,  36. 

PRINCIPLES  OF  PLEADING,  definition,  1. 

PROFERT,  9. 

QUANTUM  MERUIT,  28,  31. 

QUANTUM  VALEBANT,  28,  31. 

REAL  ACTIONS,  6. 

most  common  forms  of,  5. 

RECORD  AS  BASIS  OF  ACTION  OF  DEBT,  17. 
RECOVERY,  theory  of,  in  actions,  C. 
REJOINDER,  69. 
RELEASE,  PLEA  OF,  105. 

REPLEADER,  in  what  cases  granted,  190-192. 
nature  and  effect  of  motion  for,  191. 

REPLEVIN,  advantage  of,  over  detinue,  55. 
allegation  of  the  place  of  seizure,  56. 
avowry,  53. 

common-law  form  of  action,  5. 
distinction  between  detinuit  and  dctinet,  49. 
double  proceeding  in,  45,  46. 
example  of  declaration  in,  59. 
extension  of  action,  54,  55. 
general  issue  in,  147. 
how  chattels  recovered  in,  47,  48. 
legality  of  seizure,  how  determined,  47,  48. 
nature  of  relief,  33. 

necessary  allegations  in  declaration  in,  56. 
necessary  allegations  in  avowry,  57-59. 
object  of  action  of,  45. 
origin  of  action  of,  45. 
plea  in  excuse  in,  119. 


INDEX.  203 


[References  are  to  pages.] 

REPLEVIN— continued. 

plea  to  avowry,  148. 

proceeding  by  plaint  in,  49. 

proceeding  by  writ  in,  47. 

property  in  defendant,  how  pleaded,  119.. 

rien  en  arrere,  effect  of,  148. 

Specific  traverses  in,  148. 

REPLICATION,  de  injuria,  160. 

example  of,  bad  for  duplicity,  166. 

REPLICATION  DE  INJURIA,  origin  of,  160. 
to  what  actions  confined,  160-161. 
to  what  it  extends,  164. 
where  cannot  be  used,  161-163. 

RIEN  EN  ARRERE,  plea  of,  148. 

SIMPLE  CONTRACT  as  basis  of  action  of  debt,  16. 

SPECIAL  ASSUMPSIT,  basis  of  recovery  in,  13,  24. 
collateral  agreement,  how  pleaded,  107. 
common-law  form  of  action,  5. 
conditions,  how  pleaded,  108,  135. 
denial  of  breach,  how  pleaded,  137. 
early  form  of  action  of,  23. 
general  issue  in,  134. 

necessary  allegations  in  declaration  in,  24. 
plea  in  excuse  in,  106-199. 
specific  traverses  in,  134. 
want  of  consideration,  how  pleaded,  106,  134. 

SON  ASSAULT  DEMESNE,  PLEA  OF,  113. 

SPECIAL  DEMURRER,  at  common  law,  83. 
includes  a  general  demurrer,  85. 
statutory,  origin  of,  72,  83. 
what  matters  called  in  question  by,  83,  85. 

SPECIAL  TRAVERSES,  absque  hoc  clause,  154. 
conclusion  of,  155. 
nature  of  inducement,  154. 
not  a  substitute  for  general  issue,  159. 
object  of,  154. 


204  INDEX. 

[References  are  to  pages.'] 
SPECIAL  TRAVERSES— continued. 
parts  of,  154. 

when  may  be  pleaded  to,  156. 
when  will  be  bad  on  demurrer,  157-159. 

SPECIALTY  as  basis  of  action  of  debt,  17. 

SPECIFIC  TRAVERSES,  in  case,  152. 
in  debt,  139. 
in  detinue,  146. 
in  general  assumpsit,  138. 
meaning  of  term,  133. 
in  replevin,  148. 
in  special  assumpsit,  136. 
in  trespass,  141. 
in  trover,  144. 

STATUTE  OF  LIMITATIONS,  PLEA  OF.  106. 
STATUTE  OF  MARLBRIDGE,  c.  21,  4'J. 
STATUTE  OF  WESTMINSTER,  2,  59. 
STATUTES  AS  BASIS  OF  ACTION  OF  DEBT,  17. 
STATUTE,  4  ANNE,  C.  XVI.,  84. 
STATUTE,  27  ELIZABETH,  C.  V.,  72,  83. 
STATUTE,  3  &  4  WILLIAM  IV.,  C.  42,  99. 

SUBSTANTIVE    LAW,    knowledge    of,    necessary    to    determine 
sufficiency  of  pleadings,  3. 

SUR-REJOINDER,  69. 

THEORY  OF  RECOVERY  IN  ACTIONS,  6. 

TRAVERSES,  classification  of,  132. 

conclusion  of,  126. 

example  of,  126. 

general  issue,  133. 

joinder  of  issue,  126. 

meaning  of  word,  125. 

of  conclusion  of  law,  127. 

of  immaterial  matters,  128-130. 

of  matter  implied  in  pleading,  129. 

pleas  by  way  ol,  125-164. 


INDEX.  205 

[References  are  to  pages.] 

TRAVERSES— continued. 

special  traverses,  154-160. 
specific  traverses,  133. 
replication  de  injuria,  160-164. 
tender  of  issue  by,  126. 
terms  in  \vhich  expressed,  126. 
when  too  broad,  130. 

TRESPASS,  basis  of  recovery  in,  32,  34. 

common-law  form  of  action,  5. 

denial  of  services,  how  pleaded,  142. 

denial  of  possession,  how  pleaded,  141. 

classes  of,  34. 

for  injury  to  servant,  37. 

general  issue  in,  140. 

meaning  of  word,  34. 

necessary  allegation  in  declaration  in,  for  injury  to  person, 
34. 

necessary  allegation  in  declaration  in,  for  injury  to  prop- 
erty, 35. 

nature  of  relief  sought,  34. 

ownership,  how  pleaded,  114,  141. 

plea  in  excuse  in,  112-115. 

self-defense,  how  pleaded,  113,  140. 

specific  traverses  in,  141. 

that  act  involuntary,  how  pleaded,  114. 

TROVER,  basis  of  recovery  in,  32. 

common-law  form  of  action,  5. 

denial  of  possession,  how  pleaded,  110,  135. 

early  form  of  action  of,  38. 

extension  of  action  of,  39. 

general  issue  in,  143. 

lien,  how  pleaded,  144. 

necessary  allegations  in  declaration  in,  43. 

nature  of  relief  sought  in,  33. 

plea  in  excuse  in,  116-117. 

specific  traverses  in,  144. 

VENIRE  DE  NOVO,  186. 

[Whole  number  of  pages,  227.] 


